If you’ve ever been involved in any type of litigation you are probably aware of how expensive the process can be.  Attorneys bill for their time.  In addition there are the copying costs, facsimiles, postage, etc.   When experts are involved those fees must also be accounted for. When a  trial is involved the fees can quickly mount.  Trials involve preparation not to mention days and hours of an attorney’s time.

Almost every client or prospective client asks the same question, “How much will this cost me?”  The answer is an unsatisfying it depends.  We often tell clients that we do our best to control our side of the case, however we have no control over the other side.  It’s nearly impossible to give clients an accurate fee estimate as things change on a daily basis.  In family law, the minute an emergency arises that requires an emergent application to the court for relief, fees are expended.  So who pays these fees?

The issue of fees can be addressed in one of two ways.  One, the parties reach an agreement as to the responsibility of fees.  Or, the parties can leave it up to the judge to decide.

In a recent unpublished Appellate Division decision of Bonder v. Bonder, decided June 11, 2009, A-1262-08T3, the Court revisited the issue of payment of counsel fees in a divorce matter.

These parties had acrimonious dealings during the pendente lite phase of their matter. After a day of trial they reached an agreement as to all issues except for the distribution of marital debt and payment of plaintiff-wife’s counsel fees. Seven more days of trial continued as to those two issues. At the end, the attorneys agreed to submit Certifications of Services as to the fees expended for the trial judge to review. Before the Certifications were filed, the judge telephoned the attorneys to get the amount of fees spent and issued his written opinion. The judge denied the request for counsel fees.

Plaintiff filed a motion for reconsideration arguing that the judge erred by failing to allow the filing of the Certifications of Services and that the judge failed to consider defendant-husband’s bad faith dealings, especially during the pendente lite phase of the litigation. The motion for reconsideration was denied and plaintiff’s appealed followed.

The Court affirmed the trial court’s opinion finding that defendant’s pendente lite obligations were excessive, plaintiff would leave the marriage with substantial cash assets vis a vis defendant’s debt, and defendant did not act in bad faith.

N.J.S.A. 2A:34-23 permits an award of counsel fees in a family law matter and requires a judge to “consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good faith or bad faith of either party.” Rule 5:3-5(c) provides that the court may, in its discretion, make an award of attorney’s fees to the parties in a family law matter upon consideration of the financial circumstances of the parties, their ability to pay their own fees or contribute to the fees of the other party, the good faith of each, party the extent of fees incurred and any fees previously awarded or paid, the results obtained, and the degree to which fees were incurred to enforce existing orders or compel discovery.

In assessing a request for an award of counsel fees, the judge must determine whether the party requesting the fees has a financial need; the party who’s requested to pay the fees has the financial ability to do so; and when the first two factors have been established, whether the party seeking the award acted in good faith.

In the Bonder matter, plaintiff-wife was employed as a teacher and defendant-husband as a doctor. Despite the large discrepancy in their incomes, the Court still did not find a need or a basis for an award of fees to the plaintiff.

During litigation, especially in family law matters where emotions tend to run high, litigants who act in bad faith and have the financial wherewithal, run the risk of being forced to pay the other side’s counsel fees.