ATTORNEY FEES IN DIVORCE- THE COURT’S DISCRETIONARY AUTHORITY TO AWARD FEES

I recently received a favorable decision for my client, the former husband, in the case of Christina Giasemis v. Peter Giasemis, 2020 N.Y.Slip Op. 5491 (October 2020, Second Department ) a post-divorce judgment case where the appellate court reversed the lower court and held the former husband should not be ordered to pay the former wife’s attorney’s fees.

According to the decision, in deciding whether to award attorney fees to a party, the court must consider the financial positions of the parties, the circumstances of the case, the merits of the parties’ positions and whether either party had delayed the proceedings or engaged in unnecessary litigation.

In the Giasemis case, the court considered the financial positions of the parties, the extensive motion practice by both parties, the fact that the case was resolved without a hearing, and the fact the former wife could not prove she could not compensate her attorney. The court also awarded the Husband a bill of costs directing the Wife pay for certain legal expenses he expended in fighting the case in the appellate court.

In summary, the former Husband had to spend years and substantial legal fees of his own to prove the lower court was incorrect in awarding legal fees to the former Wife.

As this case demonstrates, the decision to award attorney’s fees in litigation is uncertain. The Law and Mediation Office of Helene Bernstein, PLLC, is available to discuss of all your questions when it comes to deciding whether to get divorced and the best way to accomplish your goals whether it is litigation, mediation, collaborative divorce, or deciding whether to appeal case from the divorce court.

BY: Helene Bernstein, Esq. of the Law and Mediation Office of Helene Bernstein, PPLC
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