COUNSEL FEES

Posted on November 4, 2009 by Mark Ashton

We are involved in a relatively simple case.  Wife is a homemaker only recently returned to work.  Husband is a mortgage broker.  Like many couples they became a bit over committed in the real estate market of the last few years. They wanted to participate in the real estate gains of the last few years and some of their investments had not panned out.  This is a classic work out settlement of the type we see with increasing frequency.  The smart move is to realize the problem and negotiate a settlement that preserves assets.

We have been litigating this case for the past 18 months.  In our judgment almost all of the litigation was not only unnecessary, but detrimental to preservation of the marital estate.  We entreated our opponents that more litigation was the last thing the parties needed.  Still the other side insisted that the battles go on.  We fought over support for a full day in a world where the incomes of both parties were either agreed upon or plain from the information provided by the employers.

Next we received a counsel fee petition.  The dependent spouse owed her counsel tens of thousands of dollars even after securing a substantial retainer. We resisted this request vigorously arguing that the facts were apparent from the beginning and the litigation almost completely unnecessary.  When the request for attorneys fees did not go in the direction she aspired, the opposing counsel filed a petition to withdraw.

The wife filed an answer professing that she had wanted to settle her case all along but that her attorney had told her the litigation was necessary and that her husband would be required to pay her attorneys fees.

We don’t know whether these allegations are true. But we can state almost without exception, that if an attorney tells a client in a domestic relations proceeding that he or she is certain to secure attorney fees in that proceeding, a second opinion should be secured. Even in cases where there is a contractual undertaking for a party breaching an agreement to pay attorneys fees, we have found that courts award such fees on a very conservative basis.  And in situations where attorneys fees are sought by reason of statutory allowance (i.e., the law expressly allows award of attorneys fees) such awards are usually a fraction of what is sought.

When can one ask for attorneys fees? Absent an agreement, attorney awards require a statutory basis.  Such awards are referenced in the divorce law. 23 Pa.C.S. 3702. Where there is a battle over custody jurisdiction, the statutes provides that counsel fees shall be awarded unless there is a finding that such an award is inappropriate. 23 Pa. C.S. 5452. In support cases Courts “may” award attorneys fees either to the oblige (the person securing support) or that person’s attorney. 23 Pa.C.S 4351 but a subsequent case interprets the statute to mean that the awards should not be a regular part of support proceedings but limited top extraordinary situations. Contempt of any kind of a divorce or alimony order invites a claim for counsel fees. 23 Pa. C.S. 3503(e)(7) and 3703(7). But this does not appear to be the case in a custody ( See Pa. R.C.P. 1915.12) or support case (See Pa. R.C.P. 1910.25) 

The statutes and rules say one thing, but courts remain chary of such awards.

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WHY A PRENUP?

Posted on October 25, 2007 by Jane E. Lessner

Couples planning to marry often want to know if they need a Pre-Nuptial Agreement (also known as an Antenuptial Agreement). One may ask their estate or corporate lawyer what he or she thinks and the answer may be "yes" in many situations, but three very common ones are if:

  1. It is a second marriage for at least one of the spouses and there are children of one or both people who will inherit instead of the spouse, 
  2. If there is an existing business to be kept out of the marriage, or 
  3. If the parties about to marry do not want to share their assets or the increases in value of those assets after they marry. Frequently, people want to protect their homes or their retirement accounts for themselves or their children.

If the parties fit into these general categories, they may benefit from such a Pre-Nuptial Agreement.

For such an agreement to be valid in Pennsylvania, there must be full and fair disclosure of all of the assets and liabilities owned by each party and a knowing waiver of rights without undue duress. Duress in Pennsylvania is the threat of physical force, not one party saying to cancel the wedding unless the document is signed. Although not required, the best way to ensure that these requirements are met is for each person to have their own lawyer, to sign such an agreement at least 30 days before the wedding, and to have all the assets, their values, and the basis for the valuations, listed in the document. Once properly executed, the document is a contract, the same as if you were buying a house - and its enforceable.

If all of this sounds too expensive or too complicated, the chances are the parties do not need the Pre-Nup!

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