Often during a marriage one spouse is more heavily involved in the finances than the other. This leads to many clients coming to my office in the dark about their finances or not having access to funds in order to secure an attorney. There are also times where I see the supporting spouse cutting off support to the needy spouse, rendering them unable to secure his or her own New Jersey divorce lawyer. Thus, a common question I receive from clients is whether or not they can force their spouse to pay counsel fees on their behalf. Let’s explore.
Fortunately in a New Jersey divorce there is a good chance that the spouse will be ordered to pay for counsel fees so that his or her partner can be represented during a matter. For example, I was hired by a client (actually it was her parents who paid the initial retainer) who did not work throughout the marriage and had no separate savings. The client’s spouse was a doctor and was in full control of the parties’ finances. My office immediately applied to the Court for attorney fees and was awarded significant counsel fees at the Judge’s discretion so that my client could be adequately and fairly represented during the divorce process.
New Jersey statute N.J.S.A. 2A: 34-23 explains that a New Jersey Family Court has the ability to order one party to pay for experts and legal fees for the other party when the respective financial conditions of the parties make such a scenario “reasonable and just.”
Further, if a party is acting in bad faith, i.e., taking unreasonable positions or litigating in a dishonest manner, counsel feel may be awarded. A Judge may also award counsel fees and find that a party acted in bad faith if they purposely did not obey a Court Order and forced the other party to file an enforcement action.
When awarding counsel fees the Court will be guided by several factors when making a decision of whether to award counsel fees, and if so how much to award. Some of these factors are:
1. The finances of the parties;
2. The amount of fees incurred;
3. Reasonableness of the positions of the parties;
4. Ability to pay for counsel fees; and
5. Previous awards of counsel fees
The reason Courts award counsel fees is because they do not want the weight of a litigant’s wallet to determine the outcome of a case. Counsel fees are essentially a way to level the playing field and to ensure that one party is not acting in a way that would detriment the other because they have less money. If you are faced with a situation where you are unable to afford an attorney because your spouse is in control of the finances, please contact the Law Offices of Edward R. Weinstein to discuss what we can do to help the situation.