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The Appellate Division, First Department’s recent decision in Mezinev v. Tashybekova, 2020 NY Slip Op 06717 (1st Dept. Nov. 17, 2020) underscores the complexities that can be involved in determining when and under what circumstances to seek an interim counsel fee award. In Mezinev, the First Department affirmed Justice Drager’s award of “only $100,000 of the more than $280,000 in fees requested by the wife.” The final sentence of the one paragraph decision notes that “the interim award will be taken into account in determining the amount of the equitable distribution award.” To support this proposition, the First Department cited a case from 1994—16 years before the Domestic Relations Law was amended in 2010 to create the rebuttable presumption in favor of the non-monied spouse.

Under law, the non-monied spouse is presumptively entitled to an award of interim counsel fees to be on equal footing with the monied spouse when seeking, inter alia, his or her equitable share of the marital estate. Does the judicial power to fashion an equitable distribution award after trial that potentially hamstrings the non-monied spouse for receiving that very award before trial create a Catch-22 for the non-monied spouse? The answer is not cut and dried.

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