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Counsel Feees & Expenses
Domestic Relations Law
DRL Article 12, Section 237
§ 237. Counsel fees and expenses.
(a) In any action or proceeding
brought (1) to annul a marriage or to declare the nullity of a void
marriage, or (2) for a separation, or (3) for a divorce, or (4) to
declare the validity or nullity of a judgment of divorce rendered
against a spouse who was the defendant in any action outside the State
of New York and did not appear therein where such spouse asserts the
nullity of such foreign judgment, or (5) to enjoin the prosecution in
any other jurisdiction of an action for a divorce,
the court may direct
either spouse or, where an action for annulment is maintained after the
death of a spouse, may direct the person or persons maintaining the
action, to pay such sum or sums of money directly to the attorney of
the other spouse to enable that spouse to carry on or defend the action
or proceeding as, in the court`s discretion, justice requires, having
regard to the circumstances of the case and of the respective parties.
Such direction must be made in the final judgment in such action or
proceeding, or by one or more orders from time to time before final
judgment, or by both such order or orders and the final judgment;
provided, however, such direction shall be made prior to final judgment
where it is shown that such order is required to enable the petitioning
party to properly proceed. Any applications for counsel fees and
expenses may be maintained by the attorney for either spouse in his own
name in the same proceeding.
(b) Upon any application to annul or modify an order or judgment for
alimony or for custody, visitation, or maintenance of a child, made as
in section two hundred thirty-six or section two hundred forty provided,
or upon any application by writ of habeas corpus or by petition and
order to show cause concerning custody, visitation or maintenance of a
child, the court may direct a spouse or parent to pay such sum or sums
of money for the prosecution or the defense of the application or
proceeding by the other spouse or parent as, in the court`s discretion,
justice requires, having regard to the circumstances of the case and of
the respective parties. With respect to any such application or
proceeding, such direction may be made in the order or judgment by which
the particular application or proceeding is finally determined, or by
one or more orders from time to time before the final order or judgment,
or by both such order or orders and the final order or judgment. Any
applications for counsel fees and expenses may be maintained by the
attorney for either spouse in counsel`s own name in the same proceeding.
Representation by an attorney pursuant to paragraph (b) of subdivision
nine of section one hundred eleven-b of the social services law shall
not preclude an award of counsel fees to an applicant which would
otherwise be allowed under this section.
(c) In any action or proceeding for failure to obey any lawful order
compelling payment of support or maintenance, or distributive award the
court shall, upon a finding that such failure was willful, order
respondent to pay counsel fees to the attorney representing the
petitioner.
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(d) The term "expenses" as used in subdivisions (a) and (b) of this
section shall include, but shall not be limited to, accountant fees,
appraisal fees, actuarial fees, investigative fees and other fees and
expenses that the court may determine to be necessary to enable a spouse
to carry on or defend an action or proceeding under this section. In
determining the appropriateness and necessity of fees, the court shall
consider:
1. The nature of the marital property involved;
2. The difficulties involved, if any, in identifying and evaluating
the marital property;
3. The services rendered and an estimate of the time involved; and
4. The applicant`s financial status.
Expenses
Domestic Relations Law
Article 12, Section 238
§ 238. Expenses in enforcement proceedings.
In any action or
proceeding to compel the payment of any sum of money required to be paid
by a judgment or order entered in an action for divorce, separation,
annulment or declaration of nullity of a void marriage, or in any
proceeding pursuant to section two hundred forty-three, two hundred
forty-four, two hundred forty-five, or two hundred forty-six, the court
may in its discretion require either party to pay the expenses of the
other in bringing, carrying on, or defending such action or proceeding.
In any such action or proceeding, applications for counsel fees and
expenses may be maintained by the attorney for the respective parties in
counsel`s own name and in counsel`s own behalf.
S 239. Stay in divorce or separation action on default of payment. In
an action for divorce or separation the court or the judge thereof may
refuse to grant an order to stay proceedings, where the only default is
the failure of a spouse to pay alimony, maintenance or counsel fees due
to his or her inability to make such payments. In no event shall a
spouse who has been imprisoned for contempt of court for failure to pay
alimony, maintenance or counsel fees or by virtue of an order of arrest
as a provisional remedy under the civil practice law and rules be stayed
from proceeding with the prosecution or defense of an action where the
only default is the failure of such spouse to pay alimony, maintenance
or counsel fees.