Questions, answers, comments, queries, thoughts, ruminations, information, analysis and perspectives on law, especially family law, divorce, child support, custody, equitable distribution, alimony and taxes by a Pennsylvania and New Jersey lawyer, located in Philadelphia.
Many times clients, especially dependent spouses, proceed through a divorce with the expectation that the opposing party will be ordered to pay for their counsel’s fees and costs.Similarly, many clients, usually the independent spouse, fully expect that each party will pay their own counsel fees and costs.Both of these assumptions are risky assumptions, because, counsel fee awards are infrequent, yet courts will award the payment of fees and costs under certain circumstances.Therefore, clients that rely on their assumptions that the other party will pay for their attorney or that each person will be responsible for their own fees and costs often may fight tooth and nail over small issues instead of choosing to settle and compromise.This tactic only serves to drag out litigation, and causes the parties to unnecessarily waste money and amass significant debt to their attorneys.
Recently, the Superior Court of New Jersey upheld an award of counsel fees in Becker v. Becker. In a succinct opinion, the Court held that New Jersey judges must follow the factors listed in Rule 5:3-5(c) when determining whether to grant an award of counsel fees and costs. These factors include: the income and disposable income of the parties, their capital assets, and their ability to pay or contribute to their own counsel fees. Therefore, an award of counsel fees and costs is a highly fact-specific decision. For example, in Becker, the Court upheld an award of counsel fees paid from Husband to Wife, because the Court found that Husband was in a financially superior position and because he was the party responsible for inflating the legal costs by being uncooperative in the litigation.
Therefore, when proceeding in a divorce or any family law litigation in New Jersey, spouses should be careful about what assumptions they make regarding counsel fees. Parties should be careful to avoid allowing an assumption about who will be paying the attorney at the end of the day to motivate their litigation decisions.
Written by Elizabeth A. Bokermann, Esquire, associate at the Law Offices of Linda A. Kerns, LLC.