While both parties in a divorce have the right to legal representation, many spouses are at a clear disadvantage when it comes to hiring an attorney.  Some of these individuals earn considerably less than their spouse, thereby making it difficult or virtually impossible for them to afford an attorney's retainer.  Other spouses, especially those in abusive situations, may have little to no access to the marital finances.  Individuals in these situations can request an award of counsel fees from their spouse by filing an application with the superior court.  

Awarding of counsel fees are up to a judge's discretion, but there are statutes that dictate the standards that must be addressed in the final decision. According to N.J.S.A. 2A:34-23, the court will need to examine “the financial circumstances of the parties, and the good or bad faith of either party.  The court may not order a retainer of counsel fees of a party convicted of an attempt or conspiracy to murder the other party to be paid by the party who was the intended victim of the attempt or conspiracy.”  

Judges must also consider 9 factors that are outlined in New Jersey Court Rule 5:3-5(c), which include:

1. A description of legal services to be rendered.
2. A description of the legal services not encompassed by the agreement, such as…  municipal court appearances, tort claims, appeals, and domestic violence proceedings.
3. The method by which the fee will be computed.
4. The amount of the initial retainer and how it will be applied.
5. When bills are to be rendered… when payment is to be made, when interest is to be charged… and whether and in what manner the initial retainer is required to be replenished.
6. A statement of the expenses and disbursements for which the client is responsible and how they will be billed.
7. The right of the attorney to withdraw from the representation... if the client does not comply with the agreement.

These factors are generally understood by the average litigant, but the concept of “bad faith” is much more complicated.  While determining whether a litigant has acted in bad faith is up to the judge's discretion, there are certain acts that are likely to be seen as intents to mislead of deceive.  It's essential to understand that bad faith is more than mere negligence or bad judgement; there should be a clear motive that indicates intentional deception of an immoral, unethical and/or illegal nature.  Litigants who are determined to be acting in bad faith will not be awarded counsel fees regardless of their financial situation, or the financial situation of the other party.  Since bad faith encompasses many types of behaviors, and not just those related to the filing of a legal action, it's important to work with an experienced attorney who can advise you on the right course of action.  For more information on the awarding of counsel fees in a divorce, please speak with the attorneys of Villani & DeLuca, P.C.