The Appellate Division, Second Department’s 2008 decision in Prichep v. Prichep, 52 A.D.3d 61 (2d Dept. 2008) was intended to, and arguably for a time did, usher in a new day for matrimonial attorneys representing the non-monied spouse. Prichep held that (1) a request by the non-monied spouse for interim counsel fees should not be denied or deferred to trial without good cause; (2) when determining applications for interim counsel fees, a detailed inquiry into the relative merit of the parties’ positions, or whether a party has delayed or prolonged the proceedings, is not warranted; and (3) an award of interim fees is warranted where there is a significant disparity in the financial circumstances of the parties.
In October 2010, Domestic Relations Law §237(a) was amended to, in theory, codify Prichep. (Although other sections of DRL §237, as well as DRL §238, were also amended in 2010, for simplicity, I will refer only to “DRL §237.”) The statute provides, in relevant part, that in specified matrimonial actions:
… the court may direct either spouse … to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse to enable the other party to carry on or defend the action or proceeding as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties. There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court’s discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding.
