Attorney Fees in Divorce

The court, in its discretion, and by public policy, may award counsel fees and costs in New Jersey divorce actions, based upon the following considerations:

• The parties respective financial circumstances;
• The financial ability of each party to pay their own fees or contribute to the fees of the other party;
• The reasonableness and good faith of the positions advanced by each party during and prior to trial;
• The extent of the fees incurred by each party;
• Any fees that were previously awarded;
• The amount of fees previously paid by each party to counsel;
• The results obtained;
• The degree to which fees were incurred to enforce existing orders and to compel discovery; and
• Any other factor bearing on the fairness of an award. New Jersey Court Rule 5:3-5(c).

By statute, the court may even make award to the less monied party for retainers of both expert and legal services when such an award is reasonable and just. N.J.S.A. 2A:34-23 (second unnumbered para.). The same standards would be used for consideration here as for an award of counsel fees and costs, as set forth immediately above. This statute also puts for some additional, or differently words, standards for determination on counsel fees and costs:

• Is there a need for the less monied spouse to have counsel fees paid?
• Does the other spouse have the financial ability to pay the fees and costs for the other spouse?
• Is the less monied party prosecuting or defending the action in good faith?

If the answer to all three of these questions is yes, public policy in New Jersey mandates that counsel fees and costs be granted to the less monied party. This does not mean that every penny of it gets paid, but, rather, there should be an award of counsel fees in some amount. Merely as a point of interest, these same standards are applied for attorney’s fees in other family actions, not just divorce actions.

Bad faith encompasses many categories of negative behavior that must be taken very seriously. This includes behavior such as delaying responses to discovery, putting forth defenses that have no merit, unreasonable refusal to settle the case and, essentially, any behavior that lengthen or impedes the litigation unnecessarily. Bad faith has such severe impact that it can result in the monied party’s attorney’s fees being paid by the less monied party.

A recent case, in fact, did exactly that. A counsel fee award was made to the party in the better financial position because of the severity of the bad faith conduct of the lesser earning party. The court did take into consideration the financial circumstances of the paying party by lessening the full award. Toryk v. Toryk, Sup. Ct., App. Div. unpublished, 2013.

As incredible as it may seem on its face, even if the party seeking counsel fees dies during the action, any obligation of the other party to pay their counsel fees is not extinguished. The result is that any attorney’s fees, even if they have not been awarded at the time of death, remain the obligation of the other party.

This was made clear in the Williams in which the wife suddenly died during the New Jersey divorce action. There was no question that she would have been awarded attorneys’ fees if the action had continued to conclusion. Williams v. Williams, 281 A.2d 273 (1971). The Supreme Court therein determined that the obligation of attorney’s fees payment did not shift to the decedent’s estate, but rather remained the obligation of the surviving spouse. In addition, it was decided that the law firm to whom the fees were owed was a party in interest and able to bring the fee action directly.

If you need to discuss attorney’s fees awards in your New Jersey divorce action or other family court actions, call the Law Offices of Peter Van Aulen for a free initial consultation with a New Jersey divorce lawyer at 201-845-7400.