Attorney Fees Awarded for Bad Faith

Jun 26, 2013

One of the most asked questions a matrimonial law attorney gets is whether my spouse will be obligated to pay me counsel fees. Under certain circumstances in divorce actions, the court can award that one party’s attorney fees be paid by the other party. The award of attorney fees in New Jersey divorce cases is governed by Rule 5:3-5(c) and N.J.S.A. 2A:34-23.

When awarding attorney fees under Rule 5:3-5(c), the court must consider:

(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.

N.J.S.A. 2A:34-23 states that the court must consider the above factors, in addition to the financial circumstances and the good or bad faith of the parties.

The New Jersey Appellate Division examined the application of the above rules in a recent case, Toryk v. Toryk, in which it affirmed an award of attorney fees in a divorce action. The court explained that while the parties’ financial circumstances are significant in the decision to award attorney fees, if the court finds that a party acted in bad faith then the parties’ economic positions have less relevance.

In Toryk, the defendant acted in bad faith by being unreasonable in his refusal to settle the case and by committing discovery violations, causing intentional and unnecessary delay in the proceedings. Therefore, even though the plaintiff earned more money and had the ability to continue to earn more money, because of the defendant’s bad faith during the divorce proceedings, he was ordered to pay plaintiff’s counsel fees. The court, however, did allow for a reduced award of attorney fees because of the parties’ financial situations.

The Appellate Division pointed out that technically, once a court finds bad faith on the part of one of the parties, the financial circumstances are not entitled to be given as much weight. However, the Appellate Division affirmed the reduced award, holding that the trial judge did not abuse his discretion in awarding the reduced amount.

This case acts as a reminder that while emotions often run high in a divorce proceeding, it is important to act in good faith throughout the proceedings, so as not to unnecessarily prolong or delay the action, or risk being ordered to pay attorney fees for the opposing party. The experienced matrimonial attorneys at Sarno da Costa D’Aniello Maceri LLC will work closely with you and pay attention to your needs, pursuing a favorable settlement on your behalf and preparing for trial when necessary. If you have questions about your family law action, contact Sarno da Costa D’Aniello Maceri LLC at 973-274-5200.