In our last article we discussed awards of counsel fees necessary for a party to carry on or defend divorce proceedings. In this article we will concentrate on the issues of counsel fees after trial and in enforcement proceedings.

Fees after trial

Following the trial of a divorce proceeding the court is empowered to make final rulings with regard to the parties’ finances. This includes division of marital property and monetary awards in lieu of property (known as distributive awards). In such situations, the issue arises as to whether the spouse with less income (“the non-monied spouse”) should also receive a final award of counsel fees.

In Hoffman v. Hoffman, the husband held shares of stock and investments with his former employer. The wife was awarded a 50% interest in these assets, and she also asked the court to make her husband pay her attorney fees. Although the husband, a top executive, was the monied spouse, the court limited the wife’s counsel fee award. Ultimately, the husband was made to pay 41% of the wife’s counsel fess. The court noted that the wife could pay the rest of the fees based upon the significant amounts given to her in asset distribution.

A similar result occurred in a case known as Nadasi v. Nadel-Nadasi. Here, the husband had the money and the court was generous in granting the wife spousal support and property division. In response to the wife’s request for counsel fees after trial, the court awarded the wife 70% of the amount asked for. The court noted that the wife’s successful recovery with regard to her other financial claims required that she pay some portion of her own counsel fees.

A case out of Kings County, named Cravo v. Diegel, had an uncommon result. The wife was the higher income spouse. Nonetheless, the court ordered the husband to contribute to her counsel fees. The court noted that the husband, as the non-monied spouse, caused the cost of the litigation to increase by way of his bad behavior. Such obstructionist conduct prolonged the litigation and made it more costly than was reasonable.

In Weinstein v. Weinstein, the court was particularly generous to the wife. She was awarded $300,000 in counsel fees in addition to a large distributive award. In its decision the court made mention of the fact that the husband had used his substantial resources to cause an escalation in the cost of the litigation.


Fees in enforcement proceedings

Counsel fee claims often arise in proceedings seeking enforcement of court orders (known as “enforcement proceedings”). The logic behind such matters is that the aggrieved party would not have had to resort to court intervention but for the other party’s default. The relevant statute in New York is Domestic Relations Law Section 237[c] which provides, in pertinent part, as follows:

“In any …… proceeding for failure to obey any lawful order …… the court shall, upon finding that such failure was willful order ……. counsel fees to the petitioner.”

 In Brink v. Brink, a Suffolk County case, the wife was awarded counsel fees when the husband’s failure to pay health care expenses, child-care and summer camp forced a return to court.

Le v. Le, involved a situation where the husband defied a court order requiring him to release money from an escrow account. As a result of his defiance of the court’s directive he was forced to pay counsel fees to the wife.

In a Nassau County case, named D.K. v. F.K., the husband violated the terms of the parties’ divorce judgment to and engaged in conduct characterized as “vexatious litigation.”  Not surprisingly, a counsel fee award in favor of the wife followed.

In Boukas v. Boukas, the wife interfered with the husband’s right to parenting time under the divorce judgment. This resulted in the husband having to enforce his rights and the wife being assessed counsel fees.

An interesting case out of Monroe County is entitled Jones v. Jones. Here, the husband engaged in many transgressions with respect to his financial obligations under court orders.

The court approved a $50,000 counsel fee award to the wife for a having to enforce her rights. What is unique about this case is that the counsel fee award was in an amount greater than the sum total of the husband’s unpaid obligations. It appears that the court wished to send a message to this litigant.

As can be seen from reviewing these decisions, the courts are fully empowered to balance the scales of justice by awarding counsel fess when indicated. A thorough knowledge of the law by an experienced attorney is critical in these matters.

 By Mark Plaine, Esq.