Domestic Relations Law (DRL) §§237 and 238 provide that in certain matrimonial actions, such as an action for a divorce, the court may direct either spouse to pay counsel fees and expenses of experts to the other spouse. Since 2010, both statutes contain “a rebuttable presumption that counsel fees shall be awarded to the less monied spouse.” Laws of 2010, Ch. 329, effective Oct. 12, 2010. As a consequence of the amendment, counsel fee cases decided prior to 2010 may no longer be authoritative.

Before DRL §§237 and 238 were amended in 2010, it had been held that an award of attorney fees to the less monied (nonmonied) spouse was not proper under §237. In Silverman v. Silverman, 304 A.D.2d 41, 47-49 (1st Dep’t 2003), a case which preceded the 2010 amendment, the Supreme Court awarded the husband $50,000 in attorney fees, noting that this award was based upon the dilatory conduct of both the wife and her then counsel. This conduct was principally founded upon her adherence, through the litigation, to the contention that the husband had secret offshore assets, which she was ultimately unable to prove, although it also included other acts by her that the court considered to have substantially increased the amount of fees he had to incur in the course of litigation.