Provides for the payment of all counsel and expert fees in matrimonial actions by the more monied party to such action

4 Co-sponsors

• Daniel O'Donnell
• Susan John
• Ellen C. Jaffee
• Sandy Galef

BILL NUMBER:A7569A REPLACEMENT 5/19/10

Title of bill

An act to amend the domestic relations law, in relation to the payment of counsel and expert fees in matrimonial actions

Purpose of bill

This bill provides for a rebuttable presumption of interim attorney's fees to the non-monied spouse in a matrimonial case or in proceedings to enforce a judgment therein. It also authorizes the court to order expert fees to be paid by one party to the other to enable the party to carry on or defend the action.

Summary of provisions of bill

Sections 237 and 238 of the Domestic Relations Law are amended to provide for a presumption of counsel fees to a non-monied spouse. In addition the court is authorized to order expert fees to be paid by one party to the other to enable the party to carry on or defend the action. The parties are also required to provide financial information to the court to enable the court to make its determination regarding counsel and expert fees.

Justification

This bill would amend sections 237 and 238 of the Domes- tic Relations Law to require the court in a matrimonial case, or a proceeding to enforce a judgment therein, involving parties with greatly unequal financial resources, to order the monied party to pay interim counsel fees for the non-monied party to enable her or him to carry on or defend it.

Current law places an onus upon the party in a matrimonial action seek- ing counsel fees pendente lite, to show why the interests of justice require it. In addition, Judges appear reluctant to order pendente lite counsel fee awards in matrimonial actions under the current statute.

A judicial order for pendente lite counsel fee awards in a matrimonial proceeding is a vital step in preventing an imbalance in the parties' resources from affecting the proceeding's outcome. Given the importance of pendente lite counsel fees, and the frequency of financial imbalance between parties to matrimonial proceedings, it is inappropriate to place the burden upon a non-monied spouse to justify it. Therefore, it is important for the Legislature to revise the statute, as proposed, to create a rebuttable presumption that such relief should be granted to the non-monied spouse. This measure requires that in a matrimonial action an order for pendente lite counsel fees and expenses should be granted at the outset of the case to ensure adequate representation of the less monied spouse from the commencement of the proceeding, and it is left to the affected parties to show why, in the interests of justice, the order should not be made. This will better address today's economic and social realities, and will help ensure that no party to a matrimonial case is strategically at a disadvantage for want of resources to pursue or defend the case. Nothing precludes an award of counsel fees to a non-profit legal service organization where such organization provides legal services without charge to a party who is eligible for counsel fees under this measure. In addition, this measure is not intended to preclude a court's current discretionary power to

award counsel fees for services and expenses incurred before the action begins.

Legislative history

2009: A.7569-A/S.4532-A - Passed Assembly/S.Judi 2005-06; Similar A.8108 - Passed Assembly

Fiscal implications for state and local governments

None.

Effective date

This act shall take effect on the sixtieth day after it shall have become a law and shall apply to any action or proceeding commenced on or after such effective date.