Does the Monied Spouse Always Have to Pay Their Spouse's Counsel Fees?

What is DRL §237(A)?

DRL §237(A) IS THE LAW THAT PERMITS THE AWARD OF ATTORNEYS’ FEES AT THE COURT’S DISCRETION AND AS JUSTICE REQUIRES. THE LAW EXPRESSLY STATES THAT THERE “SHALL” BE A REBUTTABLE PRESUMPTION THAT COUNSEL FEES SHALL BE AWARDED TO THE LESS MONIED SPOUSE.

The legislative purpose of this language is to redress the economic disparity between the monied spouse and the less monied spouse and thereby, ensure that the nonmonied spouse will be able to litigate the action and do so on equal footing with the monied spouse.

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However, this presumption in favor of awarding fees to the less monied spouse is nevertheless a rebuttable one. In the famous and well-cited New York Supreme Court case of Sykes v. Sykes, Justice Cooper noted that DRL§ 237(a) is not a “mechanical operation whereby one side can be made to pay all of the other side’s legal fees simply by virtue of having greater income, or even by having a greater overall net worth.”

The Courts will assess the appropriateness of an award of attorneys’ fees by considering “all circumstances of the case, which may include the relative merit of the parties’ positions.” DeCabrera v. Cabrera, 70 N.Y.2d 879 (1987). This includes “tactics” that result in “unnecessarily delay[ing] the litiga­tion.” Johnson v. Chapin, 49 A.D.3d 348 (1st Dep’t 2008).

Therefore, a party who has engaged in conduct resulting in unnecessary litigation may properly be denied an award of an attorney’s fee and vice versa, a party who was thereby caused to incur legal fees that otherwise would have been unnecessary may recover such fees.” See Chamberlain v. Chamberlain, 24 A.D.3d 589 (2d Dep’t 2005). A party whose conduct has “unnecessarily prolonged” an action should not be able “to pay her entire legal bill does not warrant saddling [her adver­sary] with the bill.” Aronesty v. Aronesty, 202 A.D.2d 240 (1st Dep’t 1994).

At the end of the day, the goal of an attorneys’ fee award is “to further the objec­tives of litigational parity, and to prevent the more affluent spouse from wearing down or finan­cially punishing the opposition by recalcitrance, or by pro­long­ing the litigation.” O’Shea, 93 N.Y.2d at 193. “The courts are to see to it that the matrimonial scales of justice are not unbalanced by the weight of the wealthier litigant’s wallet.”

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