Under New York law Counsel Fees in divorces are allowed under the Domestic Relations Law. In fact, the statute is pretty explicit that attorney’s fees are to be awarded when one spouse makes more money than the other.
The divorce law specifically states: “There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse.”
In plain English this means that the Judge will award attorney’s (or counsel fees) when one spouse earns more money than the other. However, this is not an absolute.
The court first must determine whether such an order would prevent the monied spouse from hiring an attorney. For example, a spouse who makes $50,000 a year probably won’t be required to pay attorney’s fees to a spouse who does not work. However, a spouse who makes $250,000 would in all likelihood pay counsel fees to a spouse who earns $100,000.
The statue and case law allow for multiple applications to be made during the course of the divorce. In fact, applications for attorney’s fees can be made up to the time of the Judgment of Divorce. Typically, the less monied spouse may make several requests during the course of the proceedings for counsel fees.
At trial the paying spouse can argue that the counsel fees ordered paid were unreasonable. If this spouse wins this argument s/he could get a create on the equitable distribution.