Attorneys are often asked if the other side can be forced to pay legal fees in a Family Court case. The answer is yes. There are two important Court rules that deal with the issue of legal fees. R. 1:10 deals with “Enforcement of Litigants Rights.” The Court, in its discretion, may make an allowance of counsel fees to be paid by any party to the action to a party accorded relief under this rule.” R. 1:10-3. This power is available to the Court when litigants fail to comply with the Court’s orders.
R.5:3-5(c) (3) provides the Court with far greater discretion in latitude in awarding legal fees. The rule provides in general that legal fees may be awarded for everything starting with the beginning of the case, the “pendente lite” phase, considering prospective services, through the final resolution of the case. The Court will analyze a request for legal fees in light of nine factors listed below.
1. The financial circumstances of the parties;
2. The ability of the parties to pay their own fees or to contribute to the fees of the other party;
3. The reasonableness and good faith of the positions advanced by the parties both during and prior to trial;
4. The extent of the fees incurred by both parties;
5. Any fees previously awarded;
6. The amount of fees previously paid to counsel by each party;
7. The results obtained;
8. The degree to which fees were incurred to enforce existing orders or to compel discovery; and
9. Any other factor bearing on the fairness of an award.
Notwithstanding the broad discretion granted to the Trial Court in awarding legal fees in family matters, most practitioners would agree that substantial legal fee awards are granted infrequently. Anecdotally, asking Judges about this, they uniformally respond with the challenge to, “show me the money.” In other words, the Court needs to identify a source of income and assets to use for fees before making an award.