Divorce in New York: Who Pays the Legal Fees (and When)?

One of the most stressful realities of divorce is the cost. Many people hesitate to take the first step because they are afraid of runaway legal fees. In New York, there is a “fee shifting” regime for matrimonial matters that can make things even more complicated.  

In New York, courts are permitted — but not required — to award counsel fees to the “less monied” spouse in a divorce action.  

It is equally important to understand this: New York’s fee-shifting law does not mean one spouse automatically pays the other’s attorney’s fees.

What Does “Fee-Shifting” Mean? 

New York is often described as a “fee-shifting” state because courts have discretion to require one spouse to contribute to the other spouse’s legal fees. 

The purpose is not punishment. The goal is fairness — ensuring that a spouse with greater access to resources cannot gain an unfair advantage simply by outspending the other in litigation. 

The Presumption: Courts Often Favor the “Non-Monied Spouse” 

New York law creates a rebuttable presumption that counsel fees should be awarded to the “less monied” spouse. 

A rebuttable presumption means the court starts from the assumption that the spouse with fewer resources should receive help — but the other spouse may still demonstrate why such an award would be unfair or inappropriate under the circumstances. 

Interim vs. Final Counsel Fees: Timing Matters 

This is one of the most misunderstood issues involving fees in divorce litigation. 

Interim (temporary) counsel fees — sometimes called pendente lite fees — are intended to “level the playing field” early in the case so both spouses can retain counsel and litigate fairly. 

Final counsel fee awards are different. Because the case has already been litigated, courts typically conduct a more detailed, retrospective review. Judges look beyond financial disparity and consider the case as a whole, including how the litigation was conducted. 

What Courts Consider When Deciding Counsel Fees 

Although financial disparity matters, it is not the only factor. Courts must weigh “the equities and circumstances of each particular case.” 

This includes: 

• The financial circumstances of both parties 

• The outcome of equitable distribution (including whether one spouse will receive substantial assets) 

• Whether spousal maintenance has been awarded 

• The relative merits of the parties’ positions 

• Whether either spouse delayed the proceedings unreasonably 

• Whether either spouse engaged in unnecessary litigation 

In other words, counsel fees are not determined by income alone. 

When a Court May Deny or Reduce Counsel Fees 

Even where one spouse earns more, courts may deny or reduce counsel fees where the overall equities do not support an award. 

Some examples include: 

• Significant Equitable Distribution 

If the spouse seeking fees will receive substantial assets through equitable distribution, the court may find that they have the ability to pay their own attorney. 

• Maintenance May Reduce the Disparity 

If spousal maintenance is awarded, courts may consider whether that support places the parties on a more equal financial footing. 

• Ability to Work / Earning Capacity 

Courts may consider a spouse’s ability to work, not just their claimed income — particularly where underemployment appears voluntary. 

• Litigation Conduct 

Courts also consider whether the spouse seeking fees drove up litigation costs by filing repeated motions, re-litigating issues already decided, or otherwise prolonging the proceedings unnecessarily. 

The Bottom Line: Counsel Fees Are About Fairness, Not Automatic Entitlement 

New York’s counsel fee statute is designed to promote fairness and access to representation. The law also requires courts to consider the case as a whole — including financial circumstances, litigation conduct, and the overall outcome — before deciding whether a spouse should be required to pay the other’s legal fees. 

If You Are Concerned About Legal Fees in a Divorce 

Whether you are the higher-earning spouse or the lower-earning spouse, counsel fees can significantly affect the strategy and trajectory of a divorce case. 

Contact us at consultation@artesezandri.com to review your matter.