Counsel fees are the number one reason most are scared of the divorce process. If one or both parties refuse to be reasonable and look at their divorce as something that should engender cooperation, counsel fees can easily get out of control and consume a family’s valuable financial resources. The common question we get is: who pays for my counsel fees?
New Jersey is a State where normally everyone pays his or her own counsel fees in court. There are only a few times in which one party can be found liable for the other’s counsel fees and costs. By “costs”, we mean filings fees, postage, copying, experts, and other related out of pocket costs incurred during the divorce process. In family law cases, including divorce, New Jersey’s court rules specifically allow the court to compel one party to pay some or all of the other party’s counsel fees and costs.
New Jersey Court Rule 5:3-5(c) authorizes the court to award counsel fees and costs in family law cases. The trial court is required to consider a variety of factors in determining if counsel fees are appropriate and what the amount should be. These factors include: (1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained: (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.
However, it is not terribly common for counsel fees and costs to be awarded in divorces. There are several reasons for this. First, most divorces settle, and it is unlikely that counsel fees will be part of a final settlement. Most will not hold out on a settlement to simply include counsel fees, particularly when all of the assets are being split. Second, courts typically do not order counsel fees in the absence of bad faith. This term is quite subjective and every judge has a different opinion on what constitutes bad faith, making predicting counsel fees difficult. While failure to comply with a court order is the number one reason counsel fees are ordered, as that is clearly bad faith, most other situations are more difficult to predict. Finally, courts usually want both parties to share the pain and have motivation to settle. In other words, providing additional access to counsel fees may encourage more litigation, which is exactly what the court is trying to avoid.
In summary, it is possible your spouse may be ordered to contribute to your counsel fees and costs. However, it is very unlikely that will occur in a typical divorce. To find out how the court is likely to look at counsel fees in your case, contact us today for an initial consultation. We will not tell you want you want to hear, but rather we will tell you what you need to know!
To find out more about how much divorce costs, read our prior blog.