Interim Attorneys Fees: An Advance Against the Marital Estate and Changes

Often times in marriages one party is the sole or majority bread winner while the other party has minimal to no income. In those situations, you can imagine how financing a divorce can be problematic and can put one party at a severe disadvantage. For those reasons, the courts have implemented a way for both parties to have equal access to the courts in situations where money is tied up with only one party.

The courts will order both parties to complete a Disclosure Statement which lists your income and expenses. The courts will then award an interim fee award to one party in an amount no less than the amount the other party paid the other attorney. That allows the courts to “balance the playing field”.

One of the biggest issues with interim fees is that it creates a cash-flow problem for the other party which could create an economical strain and prevent the parties from fully litigating their issues. On the other hand, this could also promote settlement. The other problem is that oftentimes parties did not realize that just because the other party is paying your attorney’s fees right now, that amount is an “advance” against the marital estate. In the end, when the parties divide the marital estate either 50/50 or whatever division is ordered, any interim fees awarded will come out of the receiving spouse’s distribution.

This is a major point because oftentimes attorneys fail to inform their clients that in the end the money will be deducted from any property award at the end. Had the parties been informed of this sooner, the parties may have settled on certain issues and curtailed litigation. Because of this issue, the new changes in the law that took effect on January 1, 2016 specifically codifies this provision into the statute to avoid any confusion and to put lawyers on notice that their clients should be advised of this provision.

In addition, the courts have created a uniform interim attorneys fees order to allow uniformity in all cases and prevent parties from appealing these orders on technicalities.

As a result, the new changes in the law have created a mechanism to make the process more smooth, equitable and less litigious.

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