What is a Motion for Attorney’s Fees?

//What is a Motion for Attorney’s Fees?

What is a Motion for Attorney’s Fees?

What is a Motion for Attorney’s Fees? by Deborah E. KaminetzkyThere are several different types of instances within a divorce where one might want to ask the court for attorney’s fees. In a matrimonial action, we might make a motion “pendente lite,” which means “pending the litigation,” for the moneyed spouse to pay the attorney’s fees for the spouse with less money. This type of motion for attorney’s fees would normally be drafted and filed toward the beginning of the litigation, although there are instances where it might be done later on. Another type of motion for attorney’s fees would be further along in the litigation, perhaps because one spouse dragged out the litigation and the other spouse had to pay more than they should have.

Often, when we are making a motion for some other relief, such as a post judgment motion for contempt or to enforce an agreement, we include a motion for attorney’s fees. Often the agreement or stipulation of settlement on which the divorce is based specifies that whomever wins the motion will be entitled to attorney’s fees, so we include a request for attorney’s fees within the motion. Just because we ask for a certain amount of attorney’s fees does not mean we get the amount requested. Sometimes the Judge agrees that our client should get attorney’s fees, but orders a lower amount than we requested.

For pendente lite motions, should the attorney’s fees be granted, they are granted temporarily. Should the less moneyed spouse receive an amount in equitable distribution or maintenance that would even the playing field to the point where they now have the capability to pay, the Judge may order that the fees be paid back to the other spouse or recalculated to a different amount. The idea is that they should not have to go through the court action without counsel while the richer spouse has counsel.

There was a case a few years ago where the court awarded attorney’s fees to the less moneyed spouse who then kept the litigation going for a much longer time because they now had the ability to do so without risk to their financial health. The court eventually ruled that the less moneyed spouse had no “skin in the game” and no incentive to work toward a reasonable settlement, so did not award additional fees.

Attorney’s fees for a frivolous action or because the parties agreed that the winner gets attorney’s fees are usually not recalculated later on. With post judgment motions for attorney’s fees, the facts in the situation usually hold more weight than who has more money. In other words, although there is a rebuttable presumption that the moneyed party should pay a portion of the less moneyed party’s legal fees, the facts themselves may determine which party should pay.

Deborah E. Kaminetzky

 

Deborah E. Kaminetzky, Esq.
Kaminetzky Law & Mediation, P.C.
132 Spruce Street
Cedarhurst, New York 11516
Phone: 516.374.0074

By | 2018-10-15T15:54:34+00:00 June 29th, 2017|Divorce Law|Comments Off on What is a Motion for Attorney’s Fees?

About the Author:

Deborah E. Kaminetzky is the founding member of Kaminetzky Law & Mediation, P.C. located in Cedarhurst and Garden City, New York. Prior to starting the firm Deborah worked at a Long Island firm where she learned the practice of Matrimonial and Family law and Estate Planning. Deborah has also worked at the New York City Department of Consumer Affairs where she was responsible for prosecuting unlicensed home improvement contractors and negotiating settlements for consumers. Prior to practicing law, Ms. Kaminetzky was the president of a commercial property management corporation in the New York Metro area. Ms. Kaminetzky is a member of the American Bar Association (General Practice, Solo and Small firm Division and Law Practice Management Sections), National Association of Divorce Professionals, New York State Council on Divorce Mediation, Family and Divorce Mediation Council of Greater New York, New York State Bar Association (Business Law, Estate, Family Law, ADR and General Practice Sections), Nassau County Bar Association (where she serves as Vice Chair of the General, Solo and Practice Management Committee, and is active in the Community Relations and Education Committee) and The Nassau County Women’s Bar Association. Ms. Kaminetzky was appointed to the Committee on Law Practice Management of the New York State Bar Association in 2015 and has been a frequent speaker and author of articles for their journal. Ms. Kaminetzky serves on the Board of Directors of the Yashar Attorney and Judges Chapter of Hadassah as a their Treasurer, and was their Woman of the Year 2012. Deborah graduated from New York Law School in 1991 and the University of Michigan, Ann Arbor in 1986. Ms. Kaminetzky was admitted to the First Department in 1991 and the United States Supreme Court Bar in February of 2015. Deborah is on the Matrimonial fee dispute arbitration panel for Nassau County. She expanded her alternative dispute resolution practice by completing a Mediation certificate program in December of 2013, an advanced Mediation certificate program in 2015 and most recently a Divorce Mediation certificate in early 2016 from The New York Peace Institute. Ms. Kaminetzky has spoken to various groups on topics including matrimonial law, technology and social media use, and disaster preparedness for business including cybersecurity.