NEW YORK: New York divorce attorney on the low down on attorney’s fees – who should pay?

lawyerwomanYes, your attorney can sue you for unpaid attorneys fees. The retainer agreement is a contract and it follows the same rules as any other contract. If there is a breach, the law allows the injured party to file suit to try to collect the amount owed. Your attorney would have to first put in an application for fees to the court though. See generally, Matter of Cooperman, 83 NY 2d 465.

Once the attorney has an order/judgment, then they pretty much have gold. They can collect on that judgment like any other creditor; zing your credit; garnish your wages; place liens on your property, among other things. In other words, with that judgment your attorney becomes like any other creditor. If you value your credit score, it is wise to pay on that judgment (or before there is a judgment if the debt is owed.)

But really, this post is really about how to get your spouse to pay your attorney’s fees. Why should you have to pay after all? And even if you have already paid, you can get reimbursed in some instances. How? It is very easy. Move by motion, order to show cause of habeas corpus for fees. You can do this at the beginning (pendente lite) or during (interim) and for post-judgment actions too. But you can’t get pre-judgment fees if you didn’t ask for it prior to the judgment being entered. See Domestic Relations Laws section 237(a), (b) etc. See also Sobie et al, New York Family Court Practice, (West 1996)

How specifically do you do this? Well, ask the court to basically ORDER your spouse to pay. Usually, if there is a significant difference in the income/earnings/wealth of the parties, the more affluent spouse will be ordered to pay attorney’s fees for the less affluent spouse.

Did you know that prior to 1980 in New York only wives could get an award of counsel fees? But that practice no longer holds sway. New York gender neutralized its laws with respect to counsel fees and everything else, with the enactment of the Equitable Distribution statute. And you can pretty much thank the Supreme Court for that. In the 1979 case, Orr v. Orr 440 UW 268, 99  S.Ct. 1102, 59 L.Ed.2d 306 (1970)the Supreme Court of the United States held that it was unconstitutional to limit the availability of alimony awards only to wives.

So now, either spouse can be ordered to pay the counsel fees if he or she is the more affluent spouse. The idea is t level the playing field.

One way to protect yourself from having to pay your spouse’s counsel fees, is to make sure you have a well-drafted prenuptial agreement. But I should warn you that in New York, these agreements are “narrowly construed.” What that means in English is that sometimes they are not worth the paper they are printed on.  See for example, cases like Koons v. Koons,212 Ad 2d 370, 622 NYS 2d 242  (1st Dept 1995) and Pelkey v. Pelkey 79 Ad 2d 835, 435 NYS 2d 138  (3d Dep’t 1980) appeal denied 53 NY 2d 601, 438 NYS 2d 1027, 420 NE 2d 981 (1981).

In both these cases, even though the parties had an agreement with respect to counsel fees, the court basically said, for all intents and purposes: you know what? We are going to interpret this the way we are going to interpret this and we are awarding counsel fees anyways. Because when we do our semantic calisthenics, it is pretty clear that notwithstanding what you and your spouse intended with this agreement, that counsel fees should be awarded. So hush. And pay up.

That’s pretty much my reading of those cases.

By New York Divorce Attorney: www.mynewyorkdivorceattorney.com

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