Counsel fee awards in matrimonial actions are purely discretionary. The authority for counsel fee awards is Domestic Relations Law §237 and 238. They provide that in certain matrimonial actions the court “may direct either spouse to pay counsel fees … to the attorney of the other spouse to enable the other party to carry on or defend the action or proceeding as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties. In exercising the court’s discretion, the court shall seek to assure that each party shall be adequately represented … .”

Unlike maintenance and child support, there is no formula a judge may apply to determine the amount of counsel fees. There is no “judicial rule of thumb” which ties the award of counsel fees to the amount of maintenance, child support or distributive award. Each case is decided on its own merits. And, since 2010 there is one limitation on the court’s exercise of discretion—that “counsel fees shall be awarded to the less monied spouse.” Laws of 2010, Ch. 329, effective Oct. 12, 2010.

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