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Awards of Counsel Fee Pendente Lite Given More Weight

Effective October 2010, the Domestic Relations Law was amended to create a "rebuttable presumption" that counsel fees shall be awarded to the non-monied spouse in divorce actions. The Appellate Division Second Department took this legal presumption a step further - arguably a large and emphatic step.
In its February 8, 2011 decision, Witter v. Daire, the Second Department reversed a trial court in Westchester County, which had awarded $10,000.00 in interim counsel fees and granted the non-monied spouses entire request - $125,000.00.
The long standing theory regarding interim counsel fee awards in divorce actions has been that the non-monied spouse should not be disadvantaged in the litigation because he or she cannot afford the same legal representation as the financially superior spouse. There should be a "level playing field" in the litigation, and neither spouse should be able to use financial disparity to prevail legally. 
However, those of us who have litigated divorce cases, and those of you who have been litigants in divorces, have experienced, "for better or worse", that the trial courts often did not level the playing field after an interim counsel fee decision. 
Far too often matrimonial court's awarded paltry sums - perhaps $5,000.00 or $10,000.00 - in the face of a real and significant need for counsel fees. Or even worse, referred the decision to the trial, thus not awarding anything perhaps until trial, when it is already too late. The resulting decisions often did little or nothing to level the playing field and often set the tone for an imbalanced litigation where the monied spouse wore down the non-monied spouse.    
The Appellate Division has sent a message to the matrimonial judges - take the legal presumption of awarding interim counsel fees seriously and in doing so, carefully examine the facts and proofs presented in the pendente lite counsel fee applications and make timely and fair awards. 
Categories: Litigated Divorce, Fees
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