§ 237 — Counsel fees and expenses

New York § 237

• Jurisdiction: New York
• Law DOM: Domestic Relations
• Art. 13: Provisions Applicable to More Than One Type of Matrimonial Action

Text

§ 237. Counsel fees and expenses. (a) In any action or proceeding\nbrought (1) to annul a marriage or to declare the nullity of a void\nmarriage, or (2) for a separation, or (3) for a divorce, or (4) to\ndeclare the validity or nullity of a judgment of divorce rendered\nagainst a spouse who was the defendant in any action outside the State\nof New York and did not appear therein where such spouse asserts the\nnullity of such foreign judgment, (5) to obtain maintenance or\ndistribution of property following a foreign judgment of divorce, or (6)\nto enjoin the prosecution in any other jurisdiction of an action for a\ndivorce, the court may direct either spouse or, where an action for\nannulment is maintained after the death of a spouse, may direct the\nperson or persons maintaining the action, to pay counsel fees and fees\nand expenses of experts directly to the attorney of the other spouse to\nenable the other party to carry on or defend the action or proceeding\nas, in the court's discretion, justice requires, having regard to the\ncircumstances of the case and of the respective parties. There shall be\na rebuttable presumption that counsel fees shall be awarded to the less\nmonied spouse. In exercising the court's discretion, the court shall\nseek to assure that each party shall be adequately represented and that\nwhere fees and expenses are to be awarded, they shall be awarded on a\ntimely basis, pendente lite, so as to enable adequate representation\nfrom the commencement of the proceeding. Applications for the award of\nfees and expenses may be made at any time or times prior to final\njudgment. Both parties to the action or proceeding and their respective\nattorneys, shall file an affidavit with the court detailing the\nfinancial agreement between the party and the attorney. Such affidavit\nshall include the amount of any retainer, the amounts paid and still\nowing thereunder, the hourly amount charged by the attorney, the amounts\npaid, or to be paid, any experts, and any additional costs,\ndisbursements or expenses. An unrepresented litigant shall not be\nrequired to file such an affidavit detailing fee arrangements when\nmaking an application for an award of counsel fees and expenses;\nprovided he or she has submitted an affidavit that he or she is unable\nto afford counsel with supporting proof, including a statement of net\nworth, and, if available, W-2 statements and income tax returns for\nhimself or herself. Any applications for fees and expenses may be\nmaintained by the attorney for either spouse in his or her own name in\nthe same proceeding. Payment of any retainer fees to the attorney for\nthe petitioning party shall not preclude any awards of fees and expenses\nto an applicant which would otherwise be allowed under this section.\n (b) Upon any application to enforce, annul or modify an order or\njudgment for alimony, maintenance, distributive award, distribution of\nmarital property or for custody, visitation, or maintenance of a child,\nmade as in section two hundred thirty-six or section two hundred forty\nof this article provided, or upon any application by writ of habeas\ncorpus or by petition and order to show cause concerning custody,\nvisitation or maintenance of a child, the court may direct a spouse or\nparent to pay counsel fees and fees and expenses of experts directly to\nthe attorney of the other spouse or parent to enable the other party to\ncarry on or defend the application or proceeding by the other spouse or\nparent as, in the court's discretion, justice requires, having regard to\nthe circumstances of the case and of the respective parties. There shall\nbe a rebuttable presumption that counsel fees shall be awarded to the\nless monied spouse. In exercising the court's discretion, the court\nshall seek to assure that each party shall be adequately represented and\nthat where fees and expenses are to be awarded, they shall be awarded on\na timely basis, pendente lite, so as to enable adequate representation\nfrom the commencement of the proceeding. Applications for the award of\nfees and expenses may be made at any time or times prior to final\njudgment. Both parties to the action or proceeding and their respective\nattorneys, shall file an affidavit with the court detailing the\nfinancial agreement, between the party and the attorney. Such affidavit\nshall include the amount of any retainer, the amounts paid and still\nowing thereunder, the hourly amount charged by the attorney, the amounts\npaid, or to be paid, any experts, and any additional costs,\ndisbursements or expenses. Any applications for fees and expenses may be\nmaintained by the attorney for either spouse in counsel's own name in\nthe same proceeding. Payment of any retainer fees to the attorney for\nthe petitioning party shall not preclude any awards of fees and expenses\nto an applicant which would otherwise be allowed under this section.\n (c) In any action or proceeding for failure to obey any lawful order\ncompelling payment of support or maintenance, or distributive award the\ncourt shall, upon a finding that such failure was willful, order\nrespondent to pay counsel fees to the attorney representing the\npetitioner.\n (d) The term "expenses" as used in subdivisions (a) and (b) of this\nsection shall include, but shall not be limited to, accountant fees,\nappraisal fees, actuarial fees, investigative fees and other fees and\nexpenses that the court may determine to be necessary to enable a spouse\nto carry on or defend an action or proceeding under this section. In\ndetermining the appropriateness and necessity of fees, the court shall\nconsider:\n 1. The nature of the marital property involved;\n 2. The difficulties involved, if any, in identifying and evaluating\nthe marital property;\n 3. The services rendered and an estimate of the time involved; and\n 4. The applicant's financial status.\n