In 2010, the Legislature implemented a statutory presumption that prospective or interim counsel fee awards should be paid by the “monied” party to the “less monied” party in divorce actions and other family law proceedings.1 This rebuttable presumption is intended to ensure that each party (namely, the “less monied” spouse or parent) is “adequately represented” from the outset of a proceeding.

Since the presumption came into effect, courts have encountered various problems in fashioning interim counsel fee awards under the new statutory framework. These problems are due partly to the reality that support awards can skew who is the “monied” party and partly to the fact that interim awards are, by their very essence, prospective in nature, so they cannot properly account for unreasonable litigation conduct by the less monied party.

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