Friday, April 29, 2011

Will a New Jersey court award counsel fees?

            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.

2 comments:

Anonymous said...

Linda,
I finalized a mediation today only because it would have cost a small fortune to go to trial. The plaintiffs in this case are professionals. We learned through court records that for the last 20 +/- years these people have been involved in some sort of litigation. I have a real problem with the lack of justice in the system. I understand why for financial reasons it's better to mediate the case to avoid any future legal fees. But where does that leave the average person, vulnerable to a frivolous lawsuit at any time. These litigious persons have the right to sue anyone for any reason. We did settle the case at a huge expense to my insurance company, which is why all of our premiums are so high. I so resent the system that allows these leaches to suck the system dry to our (honest, tax paying ,contributors to society) detriment. And from what I witnessed today, there is no stopping them until judges have the spine to say "this is a waste of tax payer dollars, you are clogging an overburdened system and preventing legitimate cases from being heard." I recognize how common and insignificant my case is, but I feel we need to get back to the basics of Justice, because as I see it, it has little if anything to do with our legal system. A sad state of affairs.
Thanks for letting me dump my frustration.
All the best,
In Oakland, Ca. feeling powerless, annoyed and resentful,
Typical of a defendant from what I've learned.
How can we collectively make a difference. Judges with balls? Any input or insight would be welcome.
Be well,
Pissed!

Kristi said...

I don't understand what required field I must of left blank, keep in mind it's been a hellacious day.
Be well and not victimized,
Oaklandish and disgruntled.