Retaining counsel can be expensive, whether it is to negotiate a matter or to litigate it, and that can be a really tough pill to swallow if you are not the one who spearheaded whatever it was that led to the involvement of counsel to begin with. In this practice, it is routine to see requests for “counsel fees and costs” including in Complaint, Counterclaims and Motions. Sometimes, the request even includes experts’ fees. So you have asked for counsel fees and costs. Will you get them? Maybe.
I often hear something along the lines of “well, I didn’t want the divorce (or custody action or whatever it may be) so since they started this and they wanted it, they have to pay for it.” A nice sentiment, even logical, but not particularly accurate.
In New Jersey, we operate under the “American Rule” that, ordinarily, society is best served when the parties to litigation each bear their own legal expenses and disfavors the shifting of fees where they are not expressly authorized. The theory is that the American Rule 1) promotes unrestricted access to the court for everyone; 2) ensuring equity by not penalizing persons for exercising their right to litigate a dispute, even if they lose and 3) administrative conveniences.
This does NOT mean that there is no hope in ever getting counsel fees. It just means that there must be a basis to deviate from the American Rule. In Family Court, counsel fees are not only permissible by statute, N.J.S.A. 2A:34-23, but also by Court Rule 5:3-5 and case law. In fact, in Anzalone v. Anzalone Bros., Inc. and Anzalone, 185 N.J. Super. 481, 486-86 (App. Div. 1982), the Appellate Division wrote fees in family actions are normally awarded to permit the parties with unequal financial positions to litigate on an equal footing.
However, counsel fees can also be awarded when bad faith is involved. Our own Bob Adinolfi’s case, Borzillo v. Borzillo, 259 N.J. Super. 286, 293 (Ch. Div. 1992), held “intentional noncompliance with court-ordered obligations” is demonstrative of bad faith, and bad faith is not just bad judgment or negligent actions, but “it implies the conscious doing of wrong because of dishonest purpose and moral obliquity.” In those instances, our case law had held that the relative economic position of the parties has little relevance because the purpose of the award is to protect the innocent party from unnecessary costs and to punish the guilty party.
The answer to any unasked question is always “no.” It does not hurt to request counsel fees and costs because if you don’t, the answer is automatically “no.” Do, however, keep in mind that you aren’t necessarily litigation on someone else’s dime.
Julie Burick, Esq. is a partner and shareholder at ARB based in Mount Laurel, New Jersey. Ms. Burick counsels people throughout New Jersey facing family law litigation. Counsel fee sanctions are a real consequence, and having an attorney who follows the rules and knows the law matters. If you’re moving forward with a family law matter, our office has the resources and experience to represent your unique situation.
For a more recent look at how courts in New Jersey treat bad-faith conduct, read Understanding Bad Faith in Family Law by Robert Adinolfi.
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