The issue of paying for attorney's fees in a New Jersey Divorce or Family Law matter comes up often. There is no rule in family law cases that the party who files for divorce or begins the custody dispute must pay for the other party's attorney. There is, however, authority in the law for a judge to potentially require one person to advance or pay the other party's fees. Family Court is a Court of equity, meaning the element of fairness is to be considered when a judge has to decide an issue. New Jersey law therefore gives a judge authority to grant an award of attorney's fees based on the financial situation if needed to level the playing field - to prevent one party from prevailing simply because he or she can afford to pay an attorney more. A judge may also award attorney's fees when one party has acted in bad faith, such as by violating a Court Order or taking a position that is blatantly unreasonable.
The Appellate Division recently decided the case of Santos v. Linhares specifically dealing with the issue of counsel fees. One party was ordered by the Court, after trial, to pay a portion of the other party's counsel fees. At trial, the Court made a determination that the party had acted in bad faith by not being truthful about income and by not following a Court Order.
From an attorney's perspective, this type of decision is somewhat rare because the argument over an award of counsel fees seldom goes to trial and then to appeal with a higher Court. Often attorneys in family law matters are forced to have a difficult discussion with a client about finding the point where you may end up spending too much in counsel fees to argue about counsel fees.
In general, a judge can only make a decision about an issue when one party has filed a formal application with the Court asking for a decision, including a request for counsel fees. This process exists to protect each party's due process rights - to know what allegations are being made and have a chance to respond or defend against them. Therefore, any time a party believes his/her spouse should have to pay counsel fees in a New Jersey divorce or family law matter, it becomes a question of whether it makes sense to file an application on that issue, balancing the possible gain against the time and cost involved in the process.
As with many issues that have to be discussed and resolved during a family law matter, whether to fight for an award of attorney's fees is something to be discussed and decided with the help of an experienced New Jersey family law attorney. An attorney looking out for your best interests will give you an honest analysis of the situation and, if you choose to move forward, advocate strongly before the Court.