Position Statement – 2010

A.7569A / S.4532A
Counsel Fees for Non-Monied Spouse

Support

The Women’s Bar Association of the State of New York (“WBASNY”) supports this legislation to amend the Domestic Relations Law (the “DRL”) to create a rebuttable presumption of counsel fees to the non-monied spouse in matrimonial actions.

Currently, in matrimonial actions, the non-monied spouse may seek counsel fees but must do so by petitioning the court and stating why in the interest of justice the court should award fees. Likewise, organizations that provide pro bono services usually to a non-monied spouse are allowed to petition the court for such fees. The non-monied spouse, therefore, must prove to the court why counsel fees should be awarded. However, in both cases, fees are seldom awarded, and this places the non-monied spouse and her attorney in an extremely difficult position.

This legislation would still allow the non-monied spouse to petition the court for counsel fees. However, the burden of proof would now fall on the monied spouse to state why in the interest of justice such fees should not be awarded. This provision should also apply to pro bono organizations, which are currently allowed to petition the court for counsel fees. Therefore, WBASNY suggests clarifying the legislation to ensure that such organizations continue to have this opportunity to petition the court.

This legislation would help to ensure that one spouse does not have an advantage in the matrimonial action simply because that spouse has substantially more or even all of the financial resources. Furthermore, this legislation would assist victims of domestic violence by minimizing the economic abuse of essentially “cutting off” the victim from funds necessary to prosecute their divorce, which often occurs when victims leave their abusers and pursue a divorce. In addition, the enactment of this legislation into law would be consistent with the Prichep case (Prichep v. Prichep 52 AD3d 61 (2d Dept. 2008), wherein the Second Department held that unless there is a compelling reason to do so, the non –monied spouse’s request for legal fees under DRL 237 should not be deferred to trial. Such legislation would provide for a non-monied spouse to obtain effective legal counsel during a time when it is most needed.

WBASNY urges the passage of this legislation, with an amendment to clarify that pro bono organization would still be allowed to petition the court for attorney fees.