Asked in Divorce for New York

Q: When in the process is the non-monied spouse awarded support by the monied spouse for an attorney.

If the monied spouse files for divorce and the non-monied spouse has 20 days to respond do they have to request payment for their legal fees before they respond? Can a court appointed attorney help get both financial assets and custody of 2 children from 19 years of marriage?

In this case the monied spouse brought the non-monied from Ukraine and obtained US citizenship. If the originally Ukrainian national needs welfare for support does the monied spouse have to reimburse the US government for that support?

Are pro bono divorce attorneys available in New York?

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2 Lawyer Answers
Howard E. Knispel
PREMIUM
Howard E. Knispel
Answered
  • Commack, NY
  • Licensed in New York

A: The nonmonied spouse must make a motion for attorney fees. The court can not address that without a request for it. Talk to a lawyer.

Peter Christopher Lomtevas
Peter Christopher Lomtevas
Answered
  • Brooklyn, NY
  • Licensed in New York

A: Even though there is a statute that presumes a need for counsel fees for the non-moneyed spouse (Domestic Relations Law §237), judicial expertise is needed once the non-moneyed spouse makes a motion for fees. Many judges do not know they can award counsel fees, and many judges use the withholding of fees to coerce a settlement between the parties. Others award the moneyed spouse and get reversed on appeal if the non-moneyed spouse pays for an appeal (Silverman v. Silverman, 304 A.D.2d 41, 47-49, 756 N.Y.S.2d 14, 19-21 (1st Dept. 2003)). Other judges base awards on dilatory tactics by the non-moneyed spouse like delaying the case (Cravo v Diegel, 2018 NY Slip Op 05447 [163 AD3d 920]).

The moneyed spouse does not reimburse the welfare system after the divorce is granted. That is set up because the divorce judge is supposed to know to apply an award of alimony (now called “maintenance’ in New York) to the non-moneyed spouse, and that should keep the spouse off of welfare.

There is no such thing as a pro bono divorce attorney. There are “projects” funded by state and federal governments paid to lawyers to take on cases free of any charge to the non-moneyed litigant. There are also flat-fee attorneys who will run a case from start to finish for one fee with no billing. The asker has to shop around. As for the projects, litigants familiar with the legal system know how to find these and to milk them for all they are worth. Genuinely needy litigants most often have to rely on a divorce judge for fees, but those results are spotty at best.

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