With the addition on August 13, 2010 of D.R.L. §170(7), making New York the 50th state to grant no-fault divorces, Governor Patterson also signed an amendment to D.R.L. §237. That amendment creates a rebuttable presumption that while a divorce action is pending, the “less monied” spouse shall be awarded counsel and expert fees and expenses on a timely basis.
Although the award(s) remain a matter of discretion, as justice requires, the court is charged with “assuring” that the less-monied spouse is adequately represented from the commencement of the action.
Designed to maintain a level playing field throughout divorce litigation, the amendment is shortsighted, if not foolhardy. Eliminating the market-place checks on litigation expenses can only lead to abuses.
When a client must oversee and approve fees and expenses, every decision becomes a business decision. Is contemplated action reasonable in light of all factors? However, the amendment to D.R.L. §237 is an open invitation to exhaust every discovery device and have experts value every asset. Among the questions which remain:
- To what extent courts will prospectively challenge a divorce lawyer’s statement of what must be done to “adequately” represent the client?
- Will court-appointed neutral experts be mandated to avoid awardable fees?
- To what extent will courts challenge hourly rates?
- To what extent will awards be recoupable or reallocated?
- To what extent may marital property be used to satisfy these awards?
The resources of Supreme Court Justices are already taxed beyond propriety. There is no monitoring system presently available to prevent anticipated abuses. As a result, perhaps after a period of careful judicial scrutiny, the courts may lapse into doing what is easy: finding that the “presumption” has not been rebutted and signing a blank check.
Before that occurs, the matrimonial bar, the courts, and the legislature must take action to ensure that awards of litigation expenses do not wipe out the parties’ assets and are not used as a weapon to coerce unjust settlements.