Do “Presumptive” Attorney Fees in a New York Divorce Shortchange the Client?


New York Domestic Relations Law has long had a provision allowing the court to compel a moneyed spouse in a divorce to pay the attorney fees of the non-moneyed spouse. This enlightened bit of legislation was meant to level the playing field between litigants who often consisted of a salaried husband and a non-salaried stay-at-home wife. The attorney fee law certainly advanced justice at the time it was enacted. But times have changed, and instead of progressing with society, our recently amended DRL has regressed, creating unintended consequences that actually hurt both sides.

The problem is a 2010 change to DRL § 237 that creates a legal presumption that the moneyed spouse will pay attorney fees for the non-moneyed spouse. This sounds like an effective, time-saving measure  and one less thing the court needs to hear arguments over. Just glance at the couple’s balance sheets and order the high earner to pay costs. Unfortunately, in practice, it’s not so simple.

We no longer live in an age of one-income families. Today, a husband and wife often have careers with salaries that enable each to pay their own litigation expenses. However, the presumption of the high earner paying still exists, forcing the couple to litigate who pays the lawyer. And too often, the court orders the moneyed spouse to pay attorney fees and other pendente lite support, only to find the tables have turned, and the heretofore moneyed spouse is now the non-moneyed spouse, by judicial fiat.

There’s also the matter of where the attorney’s energies are focused. Do you really want your divorce lawyer spending time in court arguing about how they will be paid? Or would you prefer they address the substantive issues of your divorce? That answer should be as obvious as the current flaw in DRL § 237 is.

One final irony is worth noting. The law on attorney fees was enacted to protect the dependent spouse from a moneyed spouse who could drag out litigation to leverage a lopsided settlement. The new law doesn’t solve this inequity; it simply transfers the oppressive power to the non-moneyed spouse, who, now that they’re playing with house money, can run up the other party’s bills to compel an unfair settlement. So, what was a progressive law has become a regressive one, badly in need of another amendment.

If you are contemplating divorce, learn how Solutions Divorce Mediation, Inc. can work for you. Call us at 1.631.683.8172 or contact our Long Island office online.

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