In New Jersey, a family court judge has authority to award counsel fees to one of the litigants pursuant to Rule 4:42-9(a)(1);  Rule 5:3-5(c); and the New Jersey Supreme Court decision of Williams v. Williams, 59 NJ 229, 233 (1971).  Additionally, a court is guided by the "the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party".  Often, litigants mistakenly assume that the litigation will ultimately be funded by the other party based upon their belief that the other party acted in bad faith.  Robert Campbell, a litigant in the March 31, 2009 unreported Appellate Division decision of Sheinbaum v. Campbell, learned (the hard way) that a counsel fee request does not rise and fall with a litigant’s belief that the other party acted in bad faith. 

The underlying facts of  Sheinbaum v. Campbell indicates a long tortured emotional history between the parents of a child with special needs.  The parties resided in Massachusetts.  Less than a year after the parties were married, they separated.  At the time of their separation, plaintiff was pregnant.  The child was born five months after the separation.  Four months after the child was born, the parties divorced but the divorce did not address custody of the child.  Thereafter, plaintiff and the child moved to New Jersey.    In New Jersey, plaintiff filed a Complaint seeking custody, child support and an order limiting defendant’s parenting time, a trial court litigation spanning three years.  During the three years of litigation, numerous orders were entered concerning parenting time and child support.  When the initial parenting time order was entered, defendant’s parenting time was supervised.  During the litigation, defendant’s parenting time became unsupervised, increased and eventually, defendant had limited overnight parenting time. Continue Reading If I Win, Do I Get Counsel Fees?