Relates to counsel fees and expenses in matrimonial actions

BILL NUMBER:S5190

Title of bill

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

This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Matrimonial Practice Advisory and Rules Committee.

In its Report to the Chief Judge of the State of New York dated February 26, 2006, the former Matrimonial Commission chaired by the Hon. Sondra Miller (who serves as Honorary Chair of the present Advisory Committee), recommended an amendment to D R.L. § 237 to make clear that indigent pro se litigants may make an application for an award of fees necessary to obtain counsel without the formal requirement of an affidavit detailing fee arrangements with counsel, provided proof has been submitted of an inability to afford counsel.* Although the Second Department in the seminal opinion of Prichep v Prichep, 52 A.D.3d 61 (App. Div. 2008, Prudenti, P.J.), suggests that an affidavit by unrepresented litigants detailing fee arrangements with counsel ought not to be required by courts, unrepresented litigants may not be aware of case law and may be intimidated by the requirement. We recommend that the statute be amended to eliminate any doubt and to codify the requirements of Prichep on a statewide basis. The purpose of the statute, to ensure that each party will be adequately represented, should not be thwarted by unnecessary obstacles to justice.

This measure, which would have no fiscal impact upon the State, would take effect immediately and apply to all actions whenever commenced as well as all judgments or orders previously entered.

Legislative History:

None. New proposal.

* Matrimonial Commission, Report to the Chief Judge of the State of New York at p 25 (Feb 2006), available at www.courts.state. ny.us/ip/matrimonial-commission