You shall not commit a perversion of justice, you shall not favor the poor, and you shall not honor the great; with righteousness shall you judge your fellow.” Vayikra (Leviticus) 19:15.

Divorce litigation is expensive. No question about it. Contested cases frequently involve battles between a well monied individual and a spouse whose access to funds is limited. Fortunately, the law provides a mechanism for equalizing the scales of justice. This is accomplished by making the wealthy spouse contribute to the cost of the other party’s attorney. In Part I of this article we will examine the right to maintain a claim for interim counsel fees.

The relevant statute

Section 237 of the New York State Domestic Relations Law provides as follows:

“In any action or proceeding ….. for a divorce ….. the court may direct either spouse ….. to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse to enable the other party to carry on  or defend the action or proceeding as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties.”

This section of the law further provides that:

“There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse.”

“In exercising the court’s discretion, the court shall seek to assure that each party shall be adequately represented …….”

In Part I of this article I wish to explore a litigant’s right to obtain an award of counsel fees during an ongoing litigation.

The cases

O’Shea v. O’Shea is an often-cited divorce case out of Nassau County. The disputed issue was the wife’s entitlement to counsel fees. The case worked its way up to the state’s highest court (the New York Court of Appeals). Here, the high court provided explanation and guidance concerning judicial rulings on counsel fee applications. In so doing, the court opined as follows:

“marital litigation is best shaped not by the power of the bankroll but by the power of the evidence.” “to prevent the more affluent spouse from wearing down or financially punishing the opposition by

recalcitrance, or by prolonging the litigation.”

Another decision of significance in this part of the state emanates from a Suffolk County divorce entitled Prichep v. Prichep. In that case the husband was a surgeon earning in excess of $400,000 per year. The wife was employed part-time and had a salary of approximately $4,000 per year.

In Prichep, the wife sought interim counsel fees (i.e. payment to her lawyer during the ongoing divorce proceedings) so that she could pay for the cost of her highly contested matrimonial matter. The trial court denied her application, on a temporary basis, but indicated that she could renew her request at the time of trial. This determination was reversed on appeal.

The appellate court noted that an interim award of fees is required to enable the less-monied spouse to litigate on equal footing with the wealthy spouse. Without allowing for such relief, the wife would be at a great disadvantage. In fact, absent an interim award of fees, the more economically powerful party would be able to retain the services of a seasoned practitioner while the other party would be left with an attorney willing to take the case on a poverty basis. This would simply be unfair.

A recent case in this area is entitled Pezzullo v. Pezzullo. This case is currently being litigated in Nassau County. The wife is stay at home mother. The husband, an oral surgeon, commands an income in excess of $1 million. The court awarded the wife an initial interim award of counsel fees. Thereafter, the case became quite expensive and the wife applied for another award of interim fees. This request was denied and the wife appealed.

The appellate court determined that Mrs. Pezzullo was, in fact, entitled to more interim fees. Once again, the court indicated that the wife, as the less monied spouse, was entitled to compete on equal footing with her well paid husband.

An interesting twist on the issue of interim fees was at the forefront of another recent proceeding known as El Masri v. Khalil. In this matter, the husband was a dentist earning over $200,000 per year. The wife had recently arrived in the United States. She was unemployed and spoke limited English. The wife did secure legal representation through a legal service project which did not charge her for the work which its attorneys performed.

Despite the fact that the wife was entitled to free representation, the legal service plan requested that the husband pay attorney fees to it. The husband opposed this request, but apparently received little sympathy from the court. The court, in fact, required the husband to pay attorney fees to the legal service plan. The fact that the plan was not charging the wife did not preclude it from being compensated by a wealthy husband in a complex case.

It is clear that parties in contested divorce proceedings have the right to retain competent attorneys who are paid for the services which they perform. In a future article we will discuss applications for counsel fees after trial and in proceedings to enforce court orders.

 By Mark Plaine