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Could your spouse have to pay your legal expenses in a divorce?

When you’re a stay-at-home parent or only work part-time, filing for divorce can be more stressful than normal. When you have little to no income, how can you afford a divorce attorney who will ensure that you get your fair share of the marital estate and, if necessary, spousal maintenance until you’re on stronger ground financially?

When a couple files for divorce in New York, each spouse is typically responsible for paying their own attorney fees and other legal expenses. However, there are some situations where the court could order your husband or wife to pay your legal fees.

Under New York law, if you earn a lot less than your spouse and have fewer financial resources, then you may request that he or she cover most (if not all) of your legal expenses incurred during the divorce. This is to ensure that your rights are not jeopardized because you couldn’t afford an attorney.

Whether or not the court will grant your request will depend on factors like:

  • Whether your spouse earns a lot more than you do
  • Whether they have more assets and financial resources than you do
  • How complicated your divorce was: did hidden assets have to be identified and uncovered, resulting in increased cost?
  • Whether the legal services you received were reasonable and necessary
  • Whether the divorce had to be litigated (and whether litigation was necessary given the circumstances)

It is important to remember that this law does not automatically entitle you to receive your legal fees in the divorce action simply because you don’t work or make less money than your spouse. For example, the court might refrain from ordering them to compensate you if:

  • They don’t make enough money to support your legal costs in addition to their own.
  • You have valuable assets, such as real estate (marital home not included), cars, a significant amount of money in your bank account, or an art collection that you can sell to pay your attorney.
  • You tried to spite your spouse by refusing to negotiate a fair and cost-effective settlement agreement and forcing your divorce to be litigated. When you deliberately make decisions that result in unnecessary legal expenses, the court may not obligate your spouse to pay them.

When you’re facing divorce, don’t let worry over cost prevent you from finding an experienced family law attorney. When you make a reasonable effort to reduce legal expenses (e.g., not letting spite or bitterness prevent you from negotiating a settlement) and your spouse has the financial means to cover your costs in addition to their own, the court may award you the cost of retaining an attorney who will protect your rights until the divorce concludes.

Contact Jayson Lutzky, P.C. if you are considering divorce. Mr. Lutzky has over 36 years of legal experience and has represented many highly satisfied clients in contested and uncontested divorce cases. He offers free in-office consultations. Call 718-329-9500 to set up an appointment.

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