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Under New York law, there is a statutory presumption that the “more monied” spouse should pay the “less monied spouse’s” attorney and expert fees.  While this requirement appears to be straight-forward fee shifting provision, it is anything but simplistic.

First, on a motion for fees, there are numerous technical requirements that must be met before a court will grant fees.  The motion must be accompanied by a retainer agreement that comports with Part 1400 of the Court’s rules.  

The failure to meet one of these stringent requirements may be fatal to a request for counsel or expert fees.

Second, judges presiding over matrimonial actions are vested with substantial discretion when considering a request for counsel or expert fees.  Who the “more monied” or the “less monied” spouse are not statutorily defined concepts.  Rather, the court determines who the more monied spouse is by weighing multiple factors, including each party’s respective incomes, assets, and his or her anticipated financial circumstances at the conclusion of the case. Notably, in some cases, the court has found that neither party is the more monied spouse, and that each party should be responsible for his or own counsel and expert fees.

When adjudicating requests for counsel fees, judges may also consider the conduct each party has engaged in during the matrimonial action. If either party employed tactics that unnecessarily delayed or prolonged the proceeding—such as taking meritless positions or filing frivolous motions—this misconduct may play an important role in determining if an award of fees is warranted.  In light of these complexities, it is very important that you retain experienced counsel.

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