Attorney Fees are Available in Custody Cases

A wealthy spouse does not have the ability to outspend a parent into submission in a custody case. A stay-at-home parent does not need to forfeit custody because they cannot afford a lawyer. If, as part of your family plan, it was decided that you would stay home with your children while the other parent or spouse earned income, you can request the working spouse pay a portion of your attorney fees. Similarly, if you earn significantly less than your spouse, the law requires that part of your attorney fees be covered.

When Can Attorney Fees be Requested?

Attorney fees can be requested at any time of the proceeding. In a divorce case involving custody, attorney fees are generally requested immediately after the lawsuit is filed by filing a pendente lite motion. The motion requests that temporary attorney fees be paid by the other spouse.

In a family court custody case, a request can be made in the initial petition or by separate motion after the case begins.

Attorney Fees in Divorce and Custody Cases

Attorney fees are available to the less monied spouse. There is a “rebuttable presumption” that counsel fees shall be awarded to the spouse who earns less income. The court, and your spouse, have to presume that there will be an order requiring attorney fees to be paid to the other side. The requirement to pay attorney fees is found in Domestic Relations Law § 237[a].

When deciding the amount of attorney fees that should be paid, the court looks at:

• The financial circumstances of the parties;

• The circumstances of the case as a whole;

• The relative merits of the parties' positions; and

• Whether either party has delayed the proceedings or engaged in unnecessary litigation.

There is no limit to the number of motions you can make requesting attorney fees. An initial request for attorney fees is made in a pendente lite motion.

Attorney Fees Are Awarded in Family Court for Custody Cases

The Family Court has the authority to award counsel fees in a custody proceeding, when warranted under the particular circumstances of the case. The provision allowing attorney fees is found in Family Ct. Act §651[b]. Like in Supreme Court, the Family Court judge looks at the complexities of the case, the relative merits of the parties' positions, as well as the parties' respective financial positions.

What Documents Are Required to be Filed to be Awarded Attorney Fees?

In order to file a motion for attorney fees in a family court custody case, the requesting party needs to submit a copy of their retainer agreement and financial disclosure statements.

A request for attorney fees in divorce custody cases requires the retainer agreement, a copy of tax returns, a recent W-2, and a statement of net worth. The motion should also be accompanied by an affidavit of the party and legal arguments.

Invoices should also be provided when trying to have attorney fees reimbursed. This permits the court to look at the scope of the work performed and potentially return the full amount you paid your attorney.

Attorney Fees May Also be Available by Agreement

If you are filing a petition for a violation of a previous custody agreement or modification of a previous custody agreement, the agreement may allow you to recover attorney fees. It is important to properly draft your custody agreement and divorce agreement in order to not have to pay attorney fees later. Always provide your attorneys with any previous agreement to review to see if this term is included.

Daniel Szalkiewicz and Cali Madia are here for you

Drafting attorney fee motions in custody cases is difficult. As experienced custody attorneys, Daniel Szalkiewicz and Cali Madia are able to file the necessary paperwork and make the right arguments to help you recover your attorney fees.  Our attorneys have handled cases in New York City, Suffolk, Nassau, Westchester, and Rockland, and can defend your rights in court.  Using our unique litigation skills and vast knowledge of technology and the law, we can help you in all situations.