There are many unwelcome notices one can be served with during a divorce, but an order to pay counsel fees for your spouse ranks pretty high on the list. This is perfectly fair in cases where the other party has no access to the marital finances. The other party may also have limited income sources compared to his or her spouse. Most cases in which counsel fees are requested are legitimate, since it's almost always the attorney who files the request. Attorneys know the requirements that have to be met in order to ask that other party cover the retainer for their services, and perhaps even on-going costs as needed. Thus, it's very difficult to fight an award to counsel fees, which are typically never reversed unless a judge clearly abused his or her discretion.
Judges must, however, examine a set of factors that are listed in New Jersey Court Rule 5:3-5(c). These factors are as follows:
- The financial circumstances of both parties.
- The ability of both parties to pay or contribute towards the other party's expenses.
- The reasonableness and good faith of the parties' requests, based on their behaviors before and during the proceedings.
- The extent of the fees incurred by both parties.
- Fees previously awarded to either party.
- The results obtained thus far.
- The degree to which fees were incurred for compelling discovery or enforcing orders.
- All other factors relevant to the fairness of the award.
As you can see, the courts attempt to consider the financial situation of both parties, but it's always a matter of relativity. While you may consider yourself pressed for money, your spouse may have virtually nothing to work with based on circumstances that can't be rectified any time soon. The court's concern in that both sides have an equal chance at competent representation, thus have an equal chance to receive a fair, equitable divorce settlement. That's why the vast majority of these guidelines have to do with finances, which are fairly black and white. However, “reasonableness and good faith” are more subjective, though they have to be based on factual and/or compelling circumstances. Still, if it can be proven that the other party had malicious intent, or attempted to manipulate the laws/ court system by making the request for counsel fees, that could be ruled as bad faith. Refusal to fulfill a duty, or neglect (intentional or otherwise) could also be seen as bad faith.
Proving bad faith, however, is extremely difficult so it's highly recommended that you speak to an attorney about your chances for a reversal. An experienced attorney can give you a detailed explanation on the legal definition of bad faith, including what you would need to show in order to prove a case of bad faith to the court's satisfaction. For more information on the awarding of counsel fees in New Jersey, please speak with the attorneys of Villani & DeLuca, P.C.