In certain instances in a New Jersey family court proceeding, attorney’s fees are available to one party or the other. The judge’s ability to award counsel fees is governed by Rule 5:3-5(c) and Rule 4:42-9. Pursuant to Rule 5:3-5(c), there are multiple factors that a judge must consider when determining whether to award counsel fees. Those factors are as follows:
(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.
One factor that is very important is the reasonableness and good faith positions advanced by the parties. This was explored in a recent case in the New Jersey Appellate Division, Homa v. Homa.
In this case, the father, who was obligated to pay child support pursuant to an order attached to the parties’ final judgment of divorce, filed a motion seeking a reduction of his child support obligation. The judge denied the father’s motion and, in fact, granted the mother’s cross-motion increasing the father’s child support obligation.
The judge explained that his decision was supported by the fact that the father’s motion was “specious,” especially because the judge had warned him on previous occasions that seeking a modification of his child support obligation would likely cause his obligation to be increased rather than decreased. The judge said that the father’s motion was “a waste of time for the parties and their attorneys,” a “waste of judicial resources,” and “constituted bad faith.” The judge therefore granted the mother’s request for counsel fees, and ordered the father to pay her $16,248.65 in counsel fees.
The Appellate Division agreed with the judge, holding that the record supported the judge’s finding of bad faith and that the judge had considered all of the above factors in coming to his decision.
This case shows that just because you have the ability to a motion for relief in the family court, if your motion does not have merit, you should think twice before filing. It is true that, if you are unable to make your child support payments, you may petition the court for a reduction. However, the burden will be on you to show a substantial change in circumstances. If you are unable to show this, a judge may determine that your motion was frivolous, and thus, constituted bad faith. If your motion is filed in bad faith, not only will your motion be denied, but you may be ordered to pay the opposing party’s counsel fees. This applies not only to child support modifications, but to other areas of family law as well.
If you are considering filing a motion with the family court, you should speak with an experienced New Jersey divorce lawyer to determine whether your motion has merit. A New Jersey divorce lawyer will also be able to help you decide the best way for you to proceed with your family law case.
If you have questions about a motion you would like to file with the family court, please contact the experienced attorneys at Sarno da Costa D’Aniello Maceri LLC at 973-274-5200.
