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Can I afford a divorce? (Awards of Counsel Fees in NJ)

The issue of costs is one of the first on a person’s mind when considering divorce. Many New Jersey residents are generally aware that the process is both time consuming and costly, but they have little idea concerning exactly how much it will cost or how long it will take.

In truth, the price range cannot be set in any definite manner. You should be extremely wary of any attorney that attempts to guarantee the cost of your litigation. If both parties choose to represent themselves, there may be very little cost to divorce; the Courts charge $250 to $275 to file a Complaint. In such cases, the real costs to the parties are paid in time away from work, children, and other obligations. Unfortunately, the New Jersey Supreme Court has held that those who appear in Court without an attorney cannot be compensated for the value of their time. Moreover, there may be serious costs to one party or the other in failing to receive what they are due under the laws in this State, whether it be in child support, alimony, distribution of assets, or the ever-present intangible: custody of children.

If the parties choose to proceed with counsel, some divorces may cost less than $5,000 while others cost exponentially more. Ask yourself whether there will be serious disputes over financial issues. Is the other party hiding assets? Does he or she own business and, if so, is there the possibility of understating income? You must also ask whether there will be serious disputes over custody of the children. In many divorces, this issue is the most hotly contested. Do you and your spouse have an amicable relationship concerning the kids? Are you going to seek sole legal custody? 50/50 parenting time? Is either party likely to relocate within or outside New Jersey? Any of these issues may give rise to contentious, and costly, litigation. Although it may be difficult, both parties should attempt to amicably resolve as many issues as possible to keep costs down.

If the costs of divorce are likely to be substantial, there are certain laws in the State of New Jersey that may help the situation. A variety of Court Rules, statutes, and cases in New Jersey provide that Courts should “even the playing field” by compelling the party in a superior financial position to subsidize the legal costs of his or her spouse. When the Court acts in this way, it is typically referred to as an award of attorney’s fees. The primary purpose of such awards is to permit the parties to litigate, in good faith, on equal footing. When the Court does so, it may order one party to establish a litigation fund on behalf of the other. This typically takes the form of a lump sum payment held in escrow, which is then used over time to satisfy ongoing attorney’s fees. Courts have expressed some reluctance to enforce this rule, however, and there may be a substantial dispute over the true amount of either party’s income prior to trial, further complicating the determination and influencing judges to delay the decision until trial.

The secondary purpose of an award of counsel fees is to prevent one party from maliciously causing harm the other. When one party acts “in bad faith,” the relative economic positions of the parties have little relevance. Bad faith requires something more than an unreasonable, frivolous or mistaken position. Rather, it speaks to a person’s motive and, as a result, can sometimes be difficult to prove. Nevertheless, there is a wide range of actions that have been held to constitute bad faith. For example, as a matter of fundamental fairness, Courts have held that a party who willfully fails to comply with a judgment or order should be held responsible for his or her adversary’s attorney’s fees. Further, New Jersey law provides that, when one party sues the other to collect unpaid child support, the Courts should require the non-paying person to pay the other’s reasonable attorney’s fees unless the default was substantially justified or other circumstances make an award of attorney’s fees unjust. The Courts have also found bad faith where one party unnecessarily complicated discovery (the exchange of information before trial) and have considered a person’s lack of honesty to the Court.

The facts of every situation are different, and it is far from guaranteed that a Court will award counsel fees even where it may seem clearly justified. Notwithstanding, in every situation, the Court must consider the following factors set forth by Court Rule:

  • The financial circumstances of the parties;
  • The ability of the parties to pay their own fees or to contribute to the fees of the other party;
  • The reasonableness and good faith of the positions advanced by the parties;
  • The extent of the fees incurred by both parties;
  • Any fees previously awarded;
  • The number of fees previously paid to attorneys by each party;
  • The results obtained;
  • The degree to which fees were incurred to enforce existing orders or to compel discovery; and
  • Any other factor bearing on the fairness of an award.

When fees are awarded, some courts consider the amount awarded to be in the nature of support and, consequently, entitled to automatic enforcement and collection through the Probation Department.

A skilled attorney can help you to navigate these issues and the many others that may arise during your divorce. If you are concerned about the costs of divorce, we invite you to call (908) 274-3028 to schedule an initial consultation and explore the issue. The DeTommaso Law Group has a payment plan to meet your needs, and the value of skilled representation in divorce proceedings is difficult to overstate.

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