In the United States, we follow what is commonly referred to as the “American Rule”: that a “prevailing litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the loser.” Alyseka Pipeline Services Co. v. Wilderness Society, 421 U.S. 240, 247 (1975). Accordingly, it is the rule in New York that “a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule. No. 1 Funding Center, Inc. v. H & G Operating Corp., 49 A.D.3d 908, 911 (3d Dept. 2008) (internal citations omitted). Thus, unless there is a statute or rule which authorizes an order of payment of attorneys and experts’ fees, such cannot be ordered without consent of the adverse party. So, without an applicable statute, good luck getting an adverse party to volunteer to pay their own counsel fees, as well as yours.
Fortunately, the Legislature has enacted many statutes which authorize awards of fees in matrimonial and family law proceedings. This was meant to reflect the reality that there is often an income disparity between parents and spouses, and that the “monied” litigant should not be able wear down or financially punish the opposition by recalcitrance, or by prolonging the litigation. Prichep v. Prichep, 52 A.D.2d 61, 65 (2d Dept. 2008). Simply put: a parent or spouse “shall not be permitted to control [the] litigation by controlling the purse-strings.” Darby v. Darby, 953 N.Y.S.2d 549 (Sup. Ct., Kings Cty., 2012).
Counsel and experts’ fees can be requested in, including, but not necessarily limited to:
- Most matrimonial proceedings, including an action for divorce – and the “less monied” spouse is presumptively entitled to them. DRL § 237(a);
- Proceedings to enforce, modify, or annul an order arising out of a matrimonial proceeding – and the “less monied” spouse is presumptively entitled to them, and where a court finds that an adverse party willfully failed to obey an order of support or maintenance, or distributive award, the court shall order them. DRL §§ 237(b), 237(c), 238;
- Family Court support proceedings to obtain, enforce, or modify an order of support – and where a court finds that an adverse party willfully failed to obey an order of support, the court shall order them. FCA § 438;
- Family Court support proceedings to obtain, enforce, or modify an order of custody. FCA § 651; DRL § 237(b); and
- Family Court family offense proceedings. FCA § 841(d); FCA § 842(f).
It should be noted that when the proceeding is brought by someone other than a spouse, former spouse, or parent of the child, the statutes may not necessarily allow for that person to seek fees. Each individual statute will have to be analyzed to determine whether a party has standing to request them.
There is also law that provides that, where an adverse party fails to provide adequate disclosure, an order of counsel fees may be appropriate.
If you have any questions or concerns, click the “Contact Us” link above, or call (315) 422-1311.
Christopher M. Judge, Esq.