There 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, Esq.
Kaminetzky Law & Mediation, P.C.
132 Spruce Street
Cedarhurst, New York 11516