Recovering Attorney Fees in NYC Child Support Cases - When & How

Navigating child support matters in New York City's Family Court or Supreme Court can be complex, especially when attorney fees are involved. This page explains the circumstances under which you can recover attorney fees in child support cases, providing valuable information for parents in NYC.

Child Support in New York: The Basics

Child support is a crucial financial provision for children following a separation or divorce. It's typically paid by the non-custodial parent to the custodial parent and covers essential expenses like food, clothing, and shelter. It's important to understand that basic child support often does *not* include unreimbursed medical expenses or childcare costs. These additional expenses may be addressChild supported separately in court orders.

When a parent stops paying child support, the custodial parent faces significant financial strain. This situation is exacerbated when the custodial parent must then hire an attorney to pursue the overdue payments. This is where the issue of attorney fees becomes critical. Facing legal costs on top of unpaid support can be overwhelming.

Recovering Attorney Fees in Child Support Cases: Willful Violation is Key

In New York, you can seek reimbursement for your legal fees in a child support case *if* the court finds the other parent's failure to pay was *willful*. A "willful" violation means the parent had the means to pay or should have had the means, but intentionally chose not to. This is a crucial distinction. It's not simply about being behind on payments; it's about a deliberate refusal to meet their obligation.

What Does "Willful" Mean?

A court will examine the specific circumstances to determine willfulness. Simply being unable to pay due to unforeseen and uncontrollable circumstances (like a sudden job loss *and* actively seeking new employment) may not be considered a willful violation. However, deliberately avoiding payment, hiding income, or neglecting to seek appropriate modifications to the support order when circumstances change (without a legitimate excuse) *could* be deemed willful. The court will look at the totality of the circumstances.

Domestic Relations Law 237(c): The Legal Basis

New York's Domestic Relations Law (DRL) 237(c) specifically addresses this issue:

In any action or proceeding for failure to obey any lawful order compelling payment of support or maintenance, or distributive award the court shall, upon a finding that such failure was willful, order respondent to pay counsel fees to the attorney representing the petitioner.

Key Takeaways from DRL 237(c):

• Willfulness is Required: Attorney fees are awarded *only* after a finding of willful non-payment. This protects parents who are genuinely struggling financially.

• Financial Hardship is a Defense: A parent who lacks the financial resources to pay and did not willfully violate the order will generally not be ordered to pay attorney fees. Documentation of financial hardship is essential.

• Timing of Fee Recovery: Attorney fees are typically recoverable *after* the willfulness hearing, not at the beginning of the process. You will likely need to pay your attorney upfront and then seek reimbursement.

• "Shall" vs. "May": Note that the law states the court "shall" order the respondent to pay fees *upon* a finding of willfulness. This suggests that it is not discretionary but mandatory.

Types of Child Support Cases Where Fees May Be Recoverable

While the most common scenario involves non-payment, attorney fees can sometimes be awarded in other child support contexts, though often requiring a showing of bad faith or willful misconduct:

• Initial Establishment of Support: While less common, some courts *might* award fees if one party acted in bad faith during the initial support determination, for example, by intentionally misrepresenting their income.

• Modification Cases: If a party's *bad faith* actions necessitate a modification proceeding (e.g., falsely claiming a significant income decrease or increase without proper justification), attorney fees might be considered.

• Contempt Proceedings (Beyond Non-Payment): Contempt can arise from violations of other child support order provisions (e.g., interference with visitation). If willfulness is proven, fees could be awarded.

Consequences of Willful Non-Payment

Besides paying back child support and your attorney fees, a parent found in willful violation of a child support order may also face other penalties, including potential incarceration for up to six months, fines, and other sanctions. The court takes these matters seriously.

How to Pursue Attorney Fees in a Child Support Case

To pursue attorney fees, you'll need to demonstrate to the court that the other parent's failure to pay was willful. This typically involves presenting evidence such as:

• Documentation of the support order

• Evidence of missed payments

• Proof of the other parent's income and assets

• Evidence that the other parent has the ability to pay but is choosing not to

• Documentation of your legal fees

It's crucial to work with an experienced child support attorney who can help you gather this evidence and present a strong case to the court.

“Reasonable” Attorney Fees

Even if a court orders the other party to pay your attorney fees, the award is typically limited to "reasonable" fees. The court will consider several factors when determining what is reasonable, including:

• The attorney's experience and hourly rate

• The complexity of the case

• The amount of time spent on the case

• The results obtained

Negotiating Attorney Fees

It's often possible to negotiate attorney fees with the other party, even before a court order. This can save both parties time and money. Direct communication or mediation may be helpful in reaching an agreement.

Impact of Shared Custody

Shared custody arrangements can add complexity to the issue of attorney fees. While the principles of willfulness and reasonableness still apply, the court may consider the specific custody arrangement and each parent's contributions to the child's care when making a determination. It's best to consult with an attorney to understand how shared custody might affect your case.

Understanding the Cost of Legal Representation

Legal fees in child support cases can vary depending on the complexity of the case, the attorney's experience, and the time involved. Many attorneys offer different fee structures, such as hourly rates, retainers, or sometimes even flat fees for certain types of work. During your initial consultation, we can discuss our fee structure in detail and provide you with an estimate of the potential costs involved in your case. We also understand that cost is a significant factor, and we will work with you to develop a strategy that is both effective and affordable. In some cases, particularly if there is a significant disparity in financial resources between the parties (one party is considered the "monied spouse"), a court may order the monied spouse to pay the other party's legal fees. This is more common in divorce cases but can sometimes apply in child support matters as well, especially if the litigation is protracted and costly.

Who Pays the Attorney Fees?

Generally, the party found to have *willfully* violated a child support order is the one ordered to pay the other party's reasonable attorney fees. This is explicitly stated in DRL 237(c). The idea is to compensate the parent who had to incur legal expenses due to the other parent's willful non-compliance.

The Monied Spouse: In some cases, particularly if there's a significant disparity in financial resources between the parties (one party is considered the "monied spouse"), a court *may* order the monied spouse to pay the other party's legal fees. This is more common in divorce cases but can sometimes apply in child support matters as well, especially if the litigation is protracted and costly. The court's rationale is often to level the playing field so that both parties have adequate legal representation.

What Happens if the Other Party Doesn't Pay the Court-Ordered Fees?

If the other parent fails to pay the court-ordered attorney fees, you can pursue enforcement action, similar to how you would pursue unpaid child support. This might involve further court appearances and potentially additional legal fees. Here are some potential enforcement mechanisms:

• Contempt Proceedings: You can file a motion with the court to hold the other party in contempt for failing to pay the court-ordered fees. If the court finds them in contempt, they may face penalties such as fines, or even jail time in extreme cases.

• Judgment and Collection: You can obtain a judgment against the other party for the unpaid fees. This judgment can then be used to garnish their wages, levy their bank accounts, or place a lien on their property.

• Income Execution: You can seek an income execution order, which directs the other party's employer to withhold a portion of their wages to pay the outstanding fees.

It's important to consult with your attorney about the best course of action for enforcing the court's order regarding attorney fees. They can guide you through the legal process and help you take the necessary steps to collect the money you are owed.

Frequently Asked Questions (FAQ)