Across the spectrum of NJ Family Court cases, the financial and emotional costs can be high.  Emotional upheaval should be handled in therapy:  family, individual, separation counseling, and the like.  This post focuses on funding the “financial cost” in divorce.  In many family law cases, the trial court has the power to award you counsel fees and costs, directing (ordering) the other party to pay some or all of them.  On such a request, the trial court (or motion judge) must take into consideration the financial resources of each party, as well as the context of the dispute.  When it is clear that one party has acted “unreasonably”, in “bad faith”, or caused the other party to expend resources to enforce a prior court order, the trial court’s mandate should be to make the injured party “whole”, as much as reimbursed fees and costs can do so.

In In the Matter of the Adoption of a Child by M.E.B. and K.N., a 2018 New Jersey Appellate Division opinion, the panel upheld the trial court’s award of counsel fees and costs in favor of the defendant parents and against the plaintiff grandparents.   The defendant parents were awarded counsel fees twice, in separate but related matters, due to the plaintiffs’ bad faith conduct.  In the first matter, the plaintiff grandparents, who were out-of-state residents, filed a New Jersey case to adopt their grandchild from the child’s natural parents.  The grandparents said the natural parents had abandoned the child.  The defendants fought this action, delivered credible testimony, and successfully urged that New Jersey courts had no subject matter jurisdiction.  The defendants won the case.  The trial court assessed the financial standing of both parties and established that plaintiffs had far more resources available to them than the defendants.  Due to the plaintiffs’ having filed an action without subject matter jurisdiction, the trial court concluded the process was burdensome for the defendants.  The trial court awarded more than half of the money requested in counsel fees to the defendants, and stated that because the plaintiffs knew or should have realized they had no case for abandonment, their filing itself was an act of bad faith. 

Those same plaintiffs later filed a separate complaint for child visitation, which the defendants sought to dismiss.  As in the prior case, plaintiffs lacked proper standing in the court.  They later filed a motion to withdraw their complaint voluntarily.  However, they sought to do so without an award of counsel fees or costs to or from either side.  Yet again, the trial court awarded counsel fees to the defendants, reasoning there was a straightforward and cost-effective way to handle this matter — but the plaintiffs had chosen otherwise.  The trial court held plaintiffs had acted in bad faith for a second time.  Although the court did not award full counsel fees to the defendants, the fees and costs it did award undoubtedly helped defendants carry the financial burdens of the case.  The Appellate Division affirmed the trial court’s counsel fees and costs award in full.

In a separate 2018 NJ case, an ex-husband moved to suspend his alimony payments because he had lost his job.  His ex-wife, the plaintiff, moved to deny this motion, as she too had recently lost her job. When defendant made his motion, however, he had been collecting severance for nearly five months and had one month remaining.  While the motion was pending, the defendant did not pay a single month’s alimony and both parties got new jobs.  The plaintiff notified the court of her new job and salary, and also informed the court the defendant had a new job, which he neglected to tell the court.  The trial court later denied defendant-ex-husband’s motion to suspend payments and awarded plaintiff ex-wife’s $1,000 in counsel fees.  The court reasoned that defendant did not show substantial changed circumstances warranting a suspension of his alimony payments.  His severance was intact when he filed his motion.  The court also noted that defendant did not announce he had received a new job approximately one month after his severance ran out.

In response to the trial court’s decision, the defendant moved for reconsideration, and the plaintiff cross-moved for counsel fees.  The trial court denied the defendant’s motion and awarded an additional $2,500 dollars of counsel fees to plaintiff, stating that defendant did not satisfy his legal burden for reconsideration.  The court explained that defendant’s motion to suspend alimony was premature as he was still receiving severance equal to his full salary for the six months immediately after he lost his job – and this employment status was only temporary.  The court awarded the counsel fees to the plaintiff because the defendant’s motion was premature and his failure to pay appropriate alimony violated her rights. 

On appeal, the Appellate Division affirmed the trial court’s decision, stating temporary changed circumstances are, legally, an insufficient basis for modification.  The defendant continued receiving nearly equal compensation during the period he was unemployed and did not show an inability to pay the agreed-upon alimony.  The plaintiff cross-appealed for full counsel fees, however, the Appellate court rejected this, affirming the court below.

Per NJ Court Rule 5:3-5(c), trial courts, legal counsel, and parties consider many factors when a party seeks a counsel fee and costs award, in addition to the financial circumstances of each party and the good faith/bad faith/reasonableness of the parties’ taken positions.  These include:

• The ability of a party to pay their own or contribute to others’ fees
• The extent of the fees
• Previously awarded fees
• Fees that have been paid to counsel previously
• The results obtained
• The degree to which fees were incurred to enforce existing orders or to compel discovery are also taken into consideration
• Any other factor bearing on the fairness of an award

CONCLUSION

If you or someone you know has a crisis or concern about family court, divorce, child custody and parenting time, permanent removal of a child from the State, parental alienation, alimony, child support, division/distribution of jointly acquired marital assets or debts, Domestic Violence, adoption, juvenile delinquency, name change, or any related issues, please contact Kingston Legal Group.  We are located on Route 27. Please write or call us for a near-term and reduced fee initial consultation.  We will listen to your facts, explain the law, and help you chart a pathway to economic self-sufficiency and social justice. Call today. You will be glad you did.