In New Jersey Family Court, Will My “Ex” Be Responsible For My Legal Fees?

In my opinion as a divorce attorney for the past 20 years, it is a matter of public policy in New Jersey Divorce law for a spouse to provide counsel fees to the other party if they are unable to afford it. Furthermore, in a divorce or post-divorce action in a New Jersey family court, lawyers may also argue on behalf of their client’s that they were in good faith by bringing the matter to court. A paramount case in New Jersey divorce and family law is Williams v. Williams which cemented this policy and expanded upon it to the point where even a spouse’s death before the divorce is finalized will not terminate the other spouse’s obligation to provide counsel fees and costs, if that spouse would have been liable if the Final Judgment of Divorce.


June Williams passed away during the course of her divorce. Following her death, her attorneys sought an award of attorney’s fees for legal services rendered to her and the costs incurred on her behalf prior to her death. The trial court denied the reward. The court relied on Sutphen v. Sutphen, and concluded that any claim June had to an award of counsel fees and costs, had terminated at her death and could not be pressed after the fact. June’s attorneys appealed the trial court’s decision to the New Jersey Appellate Division.

In Sutphen, the wife brought an action for divorce, and applied early for alimony and counsel fees pendente lite. Pendente lite is a Latin term that means “awaiting the litigation” or “pending the litigation”. In divorce law a pendente lite order is often used to provide for the support of the lower income spouse while the legal process moves ahead. However, the court postponed consideration of the pendente lite application for the final hearing of divorce, by agreement of the parties. After the court determined the wife was entitled to a judgment of divorce, it referred the unresolved matter of counsel fees and alimony to a special master or expert. The court reserved jurisdiction to make a further order regarding payments upon receiving the master’s findings.

Unfortunately, the wife in Sutphen died before the master’s findings were completed. The master also refused to complete the findings upon learning about the death. Consequently, the wife’s executrix sought to revisit the action, and wanted an award of counsel fees for services rendered to the deceased prior to death, costs incurred prior to death, and alimony from the start of the suit to the date of death. An executrix is a woman named in a decedent’s will to carry out the provisions of that will. The court denied the executrix’s motion for counsel fees and cost, and referenced the 1912 case of Seibert v. Seibert, as to why. In Seibert, the wife obtained an order from the Court of Errors and Appeals, which reserved the wife’s right to apply for alimony later, pending the appeal, and for counsel fees. Even though she died before the appeal was heard, her counsel applied for an award for performed services. The Appeals Court held that such an order could not be made, because the lawsuit had terminated upon the wife’s death.

The Sutphen court relied on the Seibert holding and concluded that the wife’s claim to counsel fees, like a permanent alimony award, was a personal right that ended when she passed away, and could not be revitalized by her estate. Conversely, the Appellate Division in Williams found the Sutphen court’s conclusion that counsel fees and costs are analogous to a permanent alimony to be clearly wrong. Unlike where a permanent alimony is sought after death, in counsel fees and cost situations death does not extinguish the need for the award. June’s estate still remains liable to the attorney for legal fees and costs. The Appellate Division stated that it believed that relieving the husband of attorney’s fees and costs in this situation in both unfair and incompatible with the public policy of granting counsel fees and costs.

In New Jersey practice, an award of counsel fees and costs in a divorce action rests in the discretion of the court. To decide whether a wife is entitled to counsel fees and costs, New Jersey courts consider several factors including the wife’s need, the husband’s financial ability to pay and the wife’s good faith in instituting or defending the action. If those factors are met, it is legal policy that counsel fees and costs in divorce actions are proper and valid, and become an obligation on the husband that he is compelled to provide to his wife. Counsel fees and costs are similar to other categories of “necessaries,” which the husband is compelled to provide to the wife by law.

In Williams, there was no doubt or dispute that if the litigation had proceeded to final judgment, June would have been entitled to an award of counsel fees and costs. The factual record demonstrates that June did not have enough personal resources to prosecute the action, that her husband had the financial ability to pay her fees, and that the action was instituted in good faith. Finally, June’s attorneys had prosecuted the action and incurred costs on her behalf in expectation of a reward. The only question that remained to the Appellate Division was whether June’s death should shift the burden of this legal expense from the husband to her estate, and ultimately to her attorneys since she had died without any assets.

The Appellate Division found that the burden should not be shifted. They stated that there is no logical reason why the wife’s sudden death should relieve her husband of his obligation, which as a matter of policy and justice he should have to bear. This is not the case with other categories of necessaries and there is no good reason to treat the wife’s claim to an award of counsel fees and costs any differently in this respect. The Appellate Division held that the trial court’s conclusion that the wife’s claim for counsel fees and costs in the present circumstances of the case, terminated at her death is clearly wrong. Furthermore, and accordingly with their opinion, the Appellate Division held that Sutphen and Seibert were over ruled. The court noted that other courts such as the ones in New Hampshire, Kentucky, and Texas have reached the same decision.

The husband contended that June’s attorney’s application should be denied because they did not substitute the wife’s estate for the deceased plaintiff, but rather sought an award directly to themselves. He argued this was improper because counsel have no standing to seek any award directly to themselves.

The Appellate Panel disagreed. They stated that in their view, the attorney’s had standing as unpaid solicitors. New Jersey case law recognizes that although counsel fees and costs are awarded to the wife, they properly belong to counsel, and the award is only to be held in trusts by the wife for the attorneys who provided the services. Accordingly, the attorney is a party in interest to the litigation. In Williams, there was no possibility of recovery from June’s estate, and unless the attorneys were allowed to file their application for cost and fees, they would have gone uncompensated and the husband would have been unjustly enriched by no longer having to pay his obligation of counsel fees and costs. Because of the unique circumstances, the panel thought that is was clear that the attorneys should be allowed to proceed with suit. Thus the court found that their application for counsel fees and costs should have been granted by the trial court. Accordingly, the trial court judgment was reversed, and the husband was ordered to pay the attorneys in the amount of $ 4,300 plus costs.

For more information on this highly prevalent issue in New Jersey family law, please contact my office today.