Will Your Spouse Pay Your Divorce Costs?
- May 17, 2016
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Friedrich v. Friedrich was a post-judgment divorce action, wherein Defendant wife’s attorney sought counsel fees against the Plaintiff for outstanding legal fees over and above the $20,000 in counsel fees the Plaintiff had been ordered to pay pendente lite. In spite of substantial disparity in the parties’ incomes, the court held that pursuant to all factors to be considered under N.J.C.R. 5:3-5(c), an additional counsel fee award was not warranted. Pursuant to Rule 5:3-5(c), the court has discretion to award counsel fees to either party in a family law action, both pendente lite and upon Final Judgment if the court finds the award to be in the interest of justice. Specifically, Rule 5:3-5(c) includes fees for “any claim for divorce, dissolution of civil union, termination of domestic partnership, nullity, support, alimony, custody, parenting time, equitable distribution, separate maintenance, enforcement of agreements between spouses, domestic partners, or civil union partners and claims relating to family type matters.” The criteria for an award of attorney’s fees include the legal services performed, or likely to be performed, and the financial circumstances of each party. In setting the amount of any award, Rule 5:3-5(c) directs the trial judge to consider: “(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.” In addition, the court has discretion to direct one or both parties to liquidate assets in order to pay counsel fees. In affirming the denial of counsel fees to the Defendant, the N.J. Appellate Division held that the trial judge gave proper review to the factors set forth and found that the Plaintiff was not able to contribute to the Defendant’s attorney’s fees. A major consideration in any divorce is the impact on one’s financial future. Although the financial issues of divorce are not to be taken lightly, if you are miserable and feel that the only thing standing between you and your happiness is the ability to finance your divorce, you should speak with an experienced divorce attorney about the possibility of receiving some of your counsel fees from your spouse. For more information about divorce, child custody, parenting time, post-judgment issues and other family law matters visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.