Courts have turned a blind eye to the gravamen of the rule articulated by DRL §237 as amended, which is that counsel fees should be awarded to the lesser-monied spouse at an early stage of the litigation.
When Sigmund Freud wrote “anatomy is destiny” referring to women (S. Freud, On the Universal Tendency To Debasement in the Sphere of Love (1912)), he could have been referring to female litigants in New York divorces who try to enforce the law entitling them to have their husbands pay their lawyer’s bills. The reason lies in New York’s application of the “American Rule” of legal fee reimbursement requiring that a litigant in a lawsuit pays her own attorney fees, regardless of the outcome of the litigation (Derfner and Wolf, 1 Court Awarded Attorney Fees ¶ 1.02 at 109 (1992)) as distinguished from the “English Rule,” which requires the loser of a lawsuit to pay the winner’s legal fees (Kritzer, The English Rule, A.B.A. J., Nov. 1992, at 54, 55). The practice encompassed by the English Rule is called “fee shifting.” The main purpose of fee shifting is to compensate the prevailing party, promote public interest litigation, punish or deter the losing party for misconduct, or prevent abuse of the judicial system. Note, State Attorney Fee Shifting Statutes: Are We Quietly Repealing the American Rule? Law & Contemp. Probs., Winter 1984 at 321, 328-45.
The English rule, which allows an attorney fee to be awarded to the prevailing party, is followed in all major common law nations except the United States. Although the American rule has been widely criticized in recent years (see, e.g., Ehrenzweig, Reimbursement of Counsel Fees and the Great Society, 54 Calif. L Rev. 792, 798-99 (1966)) it was reaffirmed by the Supreme Court as recently as 1975 (Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240 (1975)).
There are over 200 federal statutes and almost 2,000 state statutes (Derfner & Wolf, id.) that provide for fee shifting, including New York’s own Domestic Relations Law (DRL) §237. In an attempt to mitigate the effects of the American Rule, most jurisdictions—including New York—have carved out exceptions. Unfortunately, the common law gloss laid upon these statutes has enabled many jurisdictions to deprive “lesser-monied” spouses in divorce cases of their right to receive counsel fees. New York’s own indifference to the rule of law in this area—which includes flouting a statute specifically addressed to this issue—constitutes an overstepping of the judicial process rarely seen in American jurisprudence.
Historically, in domestic relations litigation, the husband was ordered to pay the wife’s attorney fees based on his duty to support her (2 W.T. Nelson, A Treatise on the Law of Divorce and Annulment of Marriage, §876 (1895); 3 Family Law and Practice §39.01) and an award of attorney fees for the wife in domestic relations cases has been one of the historically accepted exceptions to the American rule. This may be due to explicit statutory provisions or as a result of the exercise of a court’s exercising its inherent equitable powers. Wenona Y. Whitfield, Where the Wind Blows: Fee Shifting in Domestic Relations Cases, 14 Fla. St. U.L. Rev. 811 (1987).
In the matrimonial arena, the husband historically was liable for the wife’s counsel fees in actions for divorce or legal separation. Nelson, supra. Even absent express statutory authority, most jurisdictions recognized the inherent equity power of the court to grant such fees. Newman v. Newman, 69 Ill. 167 (1873); Petrie v. People, 40 Ill. 334 (1866); Goldsmith v. Goldsmith, 6 Mich. 285 (1859); Griffin v. Griffin, 47 N.Y. 134 (1872).
In domestic relations cases, trial courts have traditionally been accorded broad discretion in determining the amount of counsel fees. Generally, appellate courts will not modify an attorney fee award absent a showing of abuse of discretion by the lower court. Apkarian v. Apkarian, 39 A.D.2d 609 (3d Dep’t 1972). As a Pennsylvania court has observed, “[t]here are no fixed rules as to the amount to be allowed.” Brong v. Brong, 195 A. 439 (Pa. Super. Ct. 1937). Given the lack of legislative guidance as to the amount of counsel fees to be awarded in matrimonial cases, the standard of review has become virtually arbitrary. As one court has remarked, “[t]he phrase ‘abuse of discretion’ may be so used as to equally express almost opposite and contrary meanings … [and few] opinions of our courts have discussed the diverse meanings of the phrase.” In re Marriage of McMahon, 403 N.E.2d 730, 736 (Ill. App. Ct. 1980) (concurring opinion).
The Wife’s Lot
Even in today’s workplace where women comprise over 50% of the workforce (Duffin, Employment Rate—Women in the U.S. 1990-2019, Statista.com), many marriages reflect the traditional model where the male spouse out-earns the female spouse because the wife has deferred or reduced her level of earnings and/or career advancement in order to raise children and support the husband in his career. The problem for such female divorce litigants becomes apparent after a long-term marriage where they have been out of the workforce for many years and will not acquire the skills necessary to provide themselves with the pre-divorce standard of living for a prolonged period, if ever. While alimony statutes (maintenance in New York) address this problem, the issue becomes academic if lesser-monied female spouses cannot get to the courthouse door because the award of preliminary—or “pendente lite”—counsel fees is uncertain or subject to postponement until the end of the case, or is de minimis.
The latter scenario is disturbingly familiar to all New York matrimonial lawyers even though the legislature amended DRL §237 in 2009 to address this specific inequity.
As if anticipating the need for the amendment of DRL §237, the Court of Appeals in O’Shea v. O’Shea, 93 N.Y.2d 187, 689 N.Y.S.2d 8 (1999) opined:
Recognizing that the financial strength of matrimonial litigants is often unequal—working most typically against the wife—the Legislature invested Trial Judges with the discretion to make the more affluent spouse pay for legal expenses of the needier one. The courts are to see to it that the matrimonial scales of justice are not unbalanced by the weight of the wealthier litigant’s wallet.
O’Shea, supra at 190.
In 2009, the legislature amended DRL §237 to add a provision creating a rebuttable presumption that the lesser-monied spouse in a divorce is entitled to an award of counsel fees. Twelve years after the passage of this amendment, New York matrimonial courts have given no more than lip service to this law. Given the clear legislative intent of the amendment, this indifference to its unambiguous terms defies justice, logic, and common sense.
The legislative history behind the amendment leaves little doubt that the legislature not only perceived the need to “level the playing field” for lesser-monied divorce litigants, but fashioned a specific remedy to address it, as the comments to Assembly Bill No. A7569A show:
This bill would amend sections 237 and 238 of the Domestic Relations Law to require the court in a matrimonial case … to order the monied party to pay interim counsel fees for the non-monied party to enable her or him to carry on or defend it. Current law places an onus upon the party in a matrimonial action seeking counsel fees pendente lite, to show why the interests of justice require it. In addition, judges appear reluctant to order pendente lite counsel fee awards in matrimonial actions under the current statute.
… [t]herefore, it is important for the Legislature to revise the statute, as proposed, to create a rebuttable presumption that such relief should be granted to the non-monied spouse. This measure requires that in a matrimonial action, an order for pendente lite counsel fees and expenses should be granted at the outset of the case to ensure adequate representation of the less monied spouse from the commencement of the proceeding … .
The text of the final version of the bill reads:
In any action or proceeding brought … for a divorce … the court may direct either spouse … to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse to enable the other party 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. There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court’s discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding. (Emphasis added).
After O’Shea and the amendment of DRL §237, lesser-monied spouses could reasonably have expected that matrimonial trial courts would be receptive to, if not strongly in favor of, awarding counsel fees at the outset of divorce cases in amounts sufficient to enable them to effectively advance their cases. Instead, trial courts have eviscerated the statute and disregarded the state’s highest court by either refusing outright, granting token amounts, or deferring until the end of trial the award of counsel fees to lesser-monied spouses. By doing so, these courts have turned a blind eye to the gravamen of the rule articulated by DRL §237 as amended, which is that counsel fees should be awarded to the lesser-monied spouse at an early stage of the litigation—typically the time in which such a spouse files a pendente lite motion for interim relief—so that she will have sufficient funds with which to continue the litigation, often against a well-funded male spouse.
This judicial indifference appears to rest primarily on two questionable rationales: first, that since DRL §237(a) vests trial courts with discretion in their award of counsel fees, there is no bright-line test by which the financial litigation needs of the lesser-monied spouse might be ascertained and addressed; second, that the remedy for any perceived inadequacy in the award of counsel fees at the outset of a divorce case is best addressed by “a speedy trial.” New York is not alone in its inability to establish more rational standards for awarding counsel fees in matrimonial cases, as many other states use the “discretion” model. See Neb. Rev. Stat. §42-308 (Reissue 1952); Code of Laws of So. Carolina §20-112 (1952); Jeffords v. Jeffords, 216 S.C. 451, 58 N.E.2d 731 (1950); Klekamp v. Klekamp, 275 Ill. 98, 113 N.E. 852 (1916).
These reasons are deeply flawed. The “discretion” power built into DRL §237 effectively allows divorce courts to make judgment calls about the legitimacy of the lesser-monied spouse’s request for counsel fees without articulating any of the reasons underlying their decision. In this respect, DRL §237 differs significantly from other New York domestic relations statutes permitting courts to use discretion in fashioning financial awards, such as the Child Support Standards Act (DRL §240(1)(b), FCA §413) and maintenance statute (DRL §236(b)(6)(5-a), (6)) which permit courts to deviate from the formulae set forth in those statutes to fashion awards only if they articulate their reasons in writing. On this point, DRL §237 is silent, which has resulted not only in a patchwork of decisions regarding counsel fee awards, but also rampant abuse of the “discretion” power.
The second rationale, that perceived inequities in awards of pendente lite counsel fees are best remedied by a “speedy trial,” is also flawed. Curiously, the cases decided after the 2009 amendment to DRL §237(a) dealing with the appeal of interim counsel fee awards do not even mention the 2009 amendment, much less discuss whether the mandate of the legislature should supersede the “speedy trial” remedy when calculating awards of interim counsel fees. See Avello v. Avello, 72 A.D.3d 850 (2d Dep’t 2020); In re Olga P. v. Ionannis Y., 182 A.D.3d 447 (1st Dep’t 2020); Nimkoff v. Nimkoff, 69 A.D.3d 501 (1st Dep’t 2010).
Rarely have New York’s appellate courts given such cavalier treatment to the realities of matrimonial litigation, particularly where trial courts have been directed by the legislature to specifically address an issue of financial inequality between litigants of unequal financial strength.
The fact that in the case of counsel fees, there is no formula to deviate from, is a distinction without a difference. In areas other than matrimonial law, such as tort and contract law, courts are routinely called on to calculate the measure of damages to be awarded. The fact that there is no formula for the calculation of counsel fees in divorce cases should not hamstring courts into making arbitrary awards of counsel fees. In fact, the justification for requiring courts to articulate their reasoning when exercising their discretion in fashioning awards of counsel fees is equally, if not more important than the need to articulate those principles in the child support and maintenance areas, because if the lesser-monied spouse is barred from prosecuting her case for lack of funds, the issues of child support and maintenance may become either moot or skewed significantly in favor of the more monied spouse.
Also, New York courts have shown a disturbing proclivity to deny counsel fee awards to divorce litigants on the ground that a particular award of equitable distribution was substantial, thereby somehow negating the need for counsel fees. These cases conflate the purpose of counsel fees with equitable distribution.
With the passage of the equitable distribution statute in 1980 (DRL §236), New York adopted the “economic partnership” theory of marriage which posits that gains and losses in a marriage are, or at least theoretically should be, fairly allocated. Under this doctrine, marriage acts as an economic yoke binding the husband and wife together irrespective of the financial acumen of either partner. It follows, at least in those cases where the husband is the more-monied spouse, that the marital assets to be distributed to the parties should not be reduced by the amount of attorney fees the wife has to incur to bring her divorce case against a husband, especially where the husband has used his superior financial strength to over-litigate his case against the wife. Indeed, in the context of alimony, an Illinois court has commented on the relationship between a substantial award of alimony and counsel fees, stating “[w]e reject [the husband’s] assertion that the alimony award itself provided ample funds to allow [the wife] to pay her counsel. The alimony award was based on a set of criteria exclusive of attorney’s fees and any effort to connect them is misspent.” Bellow v. Bellow, 419 N.E.2d 924, 932 (Ill. App. Ct. 1981).
New York should amend the rebuttable presumption of DRL §237 by requiring monied spouses to pay 75% of the lesser monied spouse’s pendente lite counsel fees, up to a cap of $175,000, subject to reallocation. A further provision should provide that both parties have the right to submit evidence bearing on the award of counsel fees. There should also be a provision empowering the trial court to deviate from the 75% figure and/or the $175,000 cap upon its articulation in writing of the reasoning underlying the deviation. Such an amendment would impose a measure of order and predictability in an area of New York law that is currently in a state of chaos, confusion and inequality.
Daniel H. Stock heads family law firm Daniel H. Stock, PLLC (www.danielhstockpllc.com). He has more than 20 years of experience serving clients in New York City, the boroughs, and Westchester County, and can be reached at firstname.lastname@example.org.