Domestic Relations Law (DRL) §§237 and 238 provide that in certain matrimonial actions, such as an action for a divorce, the court may direct either spouse to pay counsel fees and expenses of experts to the other spouse. Since 2010, both statutes contain “a rebuttable presumption that counsel fees shall be awarded to the less monied spouse.” Laws of 2010, Ch. 329, effective Oct. 12, 2010. As a consequence of the amendment, counsel fee cases decided prior to 2010 may no longer be authoritative.

Before DRL §§237 and 238 were amended in 2010, it had been held that an award of attorney fees to the less monied (nonmonied) spouse was not proper under §237. In Silverman v. Silverman, 304 A.D.2d 41, 47-49 (1st Dep't 2003), a case which preceded the 2010 amendment, the Supreme Court awarded the husband $50,000 in attorney fees, noting that this award was based upon the dilatory conduct of both the wife and her then counsel. This conduct was principally founded upon her adherence, through the litigation, to the contention that the husband had secret offshore assets, which she was ultimately unable to prove, although it also included other acts by her that the court considered to have substantially increased the amount of fees he had to incur in the course of litigation.

The Appellate Division reversed, holding that this award of attorney fees to the monied spouse was not proper because it did not comport with the purpose and policies of that part of §237(a) which permits the court to direct either spouse to pay counsel fees to the other spouse ”to enable that spouse 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.” It pointed out that the intent of the provision is to ensure a just resolution of the issues by creating a more level playing field with respect to the parties' respective abilities to pay counsel, “to make sure that marital litigation is shaped not by the power of the bankroll but by the power of the evidence.” It noted that the statute's reference to ”having regard to the circumstances of the case and of the respective parties” permits consideration of many factors, but focuses primarily upon the paramount factor of financial need. Here, the husbands earning capacity going forward was substantially higher than the wife's, such that he would be capable of maintaining or approximating the lifestyle the couple previously enjoyed, while she would not. An award of counsel fees to him would not level the playing field, but would serve merely to the wife for what the court viewed as wasteful, frivolous litigation conduct. The court observed that while it is conceivable that a counsel fee award to which a nonmonied spouse might otherwise be entitled could be reduced to the extent that party's conduct was considered to be frivolous or wasteful, it held that it is improper to direct the nonmonied spouse to pay a portion of the other's fees under §237.