A concern that I have been asked when giving my free consultation is who pays for the divorce. Ordinarily this question arises when one spouse has been a loving partner who stayed home for years raising children and taking care of the household. This partner may also have just recently entered the workforce or is employed part time. As a result, they fear that they do not have the financial resources to divorce. The question becomes—am I stuck? The answer is –no. One of the first questions that you will be asked pertains to the work history of you and your spouse and the earnings of the marriage.
Generally, there are two categories, the monied spouse and the nonmonied spouse. As you might guess, the monied spouse is the one with the higher
income. Gender does not play a role in this determination. While you will be charged for the initial retainer, Domestic Relations Law §237 provides
that there “shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse.” If the parties cannot agree on payment of counsel fees then a pendente lite motion must be filed. Granting this motion prevents an imbalance in the parties’ resources from affecting the proceeding’s outcome. This protects the monied spouse from dragging litigation out in an attempt to drain resources and outspend the non-monied spouse. Courts are aware of
the disparity that the monied spouse could have when litigating a divorce and attempt to ensure that each party is adequately represented. Due to the importance of obtaining fees in a timely matter in order to prevent the monied spouse from “wearing down” a non-monied spouse due to financial strength, the courts generally do not defer on its ruling for this type of motion and order an award of fees and expenses in a timely fashion.
The burden is on the monied spouse to demonstrate why an award is unwarranted. While the granting of this motion is within the sound discretion of the court, it will review the financial circumstances of both parties and consider all the other circumstances of the case. In particular, the court will take into account (1) the parties’ ability to pay; (2) the nature and extent of the services rendered; (3) the complexity of the issues involved; and (4) the reasonableness of fees
requested. The attorneys will file their respective retainer agreements and invoices with the court, outlining their fee structure as well as anticipated expenses. Also, request that if necessary, the court grant permission to request more money should the award be exhausted in the normal course of the litigation.