New Jersey Divorce Attorney Fees – Bad Faith, Lack of Money as Criteria for an Award

One of the most unsettling question marks in a divorce case is the cost of attorney fees. In an uncontested case the fees can usually be fixed as a flat fee. However, in a contested case the fees are usually billed at an hourly rate. Why the difference?

In an uncontested case  your spouse does not contest the proceedings, so your lawyer can estimate how much time it will take to complete your side of the divorce based on their prior experience, i.e., the lawyer can predict how much time they will spend to get your matter finalized.

In a contested case your spouse contests the proceedings, so your lawyer cannot predict how long it will take for your case to be finalized. Your spouse may agree to everything that you propose on or before your first court date. Or your spouse may fight every settlement proposal and take unreasonable positions on every issue. A contested case may be resolved after one court appearance, or the case may not resolve even after multiple court appearances and numerous court filings. A contested case may not settle at any point, and may have to be tried in front of a judge. Because of the unpredictability of a contested case lawyers set hourly rates for their work in these cases.

Can I Make My Spouse Pay My Attorney Fees?

In an uncontested case the court will generally not award attorney’s fees against the non-contesting party. However, in a contested case there are a few situations in which the court may make your spouse pay or contribute to your attorney fees. The top two reasons that a court may award counsel fees are either a parties bad faith and/or a  parties lack of money,

Bad Faith

Bad faith is conduct which needlessly slows down the divorce proceedings, or conduct which violates a court order. For example, if your spouse is ordered to pay child support and spousal support and he fails to pay either or both, if you bring an enforcement motion you can ask the court to have him pay your legal fees for having to bring the motion. Similarly, if your spouse takes ridiculous, unsupported positions in your divorce negotiations, and thereby unnecessarily prolongs the divorce process, the court may award you attorney fees. If your spouse drains marital assets in anticipation of filing for divorce, drops you from covered insurance, or otherwise takes action which has the effect of driving up your attorney fees you have a good case for pursuing attorney fees.

Lack of Money

If you don’t have the money to pay your lawyer to represent you, your lawyer can apply to the court, via motion, for the other party to pay or contribute to the payment of your counsel fees. The court will apply a multi-factor analysis as set out below in determining whether to grant a counsel fee request, and how much of an award to grant.

Multi-Factor Analysis

The following are the factors the court reviews in determining whether to award attorney’s fees. There are actually two separate court rules that are analyzed: Rule 5:3-5(c) and Rule 4:42-9.

Rule 5:3-5(c)

Rule 5:3-5(c) lists (8) criteria that a court should apply in determining the amount of a legal fee award.

(1st Criteria) The financial circumstances of the parties;

(2nd Criteria) The ability of the parties to pay their own fees or to contribute to the fees of the other party;

(3rd Criteria) The reasonableness and good faith of the positions advanced by the parties;

(4th Criteria) The extent of the fees incurred by both parties;

(5th Criteria) Any fees previously awarded; The amount of fees previously paid to counsel by each party;

(6th Criteria) The Results Obtained;

(7th Criteria) The degree to which fees were incurred to enforce existing orders or to compel discovery;

(8th Criteria) Any other factor bearing on the fairness of an award.

Rule 4:42-9

Rule 4:42-9 requires that an Affidavit of Service be prepared addressing the factors set out in the Rules of Professional Conduct (RPC 1.5 – Reasonableness of Fee. )

The factors set forth in RPC 1.5 are:

  • (a) A lawyer’s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
    • (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
    • (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
    • (3) the fee customarily charged in the locality for similar legal services;
    • (4) the amount involved and the results obtained;
    • (5) the time limitations imposed by the client or by the circumstances;
    • (6) the nature and length of the professional relationship with the client;
    • (7) the experience, reputation, and ability of the lawyer or lawyers performing the services;
    • (8) whether the fee is fixed or contingent.

As you can see it is no simple matter to apply for a counsel fee award.  Three different sets of rules and more than 15 factors have to be analyzed and presented to the court in order for the court to consider ruling in one’s favor.  It should also be noted that each judge in Family Part has their own propensities and inclinations when it comes to awarding attorney’s fees. Some judges award full attorney’s fees for bad behavior. Some only award attorney’s fees in the most egregious cases. Some judges will grant a full award.  Other judges grant partial award’s requiring client’s to put some “skin in the game”.

I have been practicing family law in the following Northern New Jersey counties: (Bergen, Passaic, Essex, Hudson, and Union) for over 20 years, and I have experience with the preparation and argument of counsel fee motions. If you have any questions about whether and when to apply for a counsel fee award, or if you have any other family law-related questions, call my office at 201-731-3086. Or contact me via e-mail using the e-mail contact form. The consultation is free.