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Counsel Fees: A Tipping Point
The recent decision in Sykes v. Sykes, 41 Misc.3d 1061 (Sup. Ct. N.Y. Cty. 2013), sent shock waves reverberating throughout the New York matrimonial bar for its direction that during the pendency of a divorce litigation, the less monied spouse may be required to use a portion of her share of the marital estate to pay her legal fees, rather than continue to have such fees paid by the wealthier spouse. The court's rationale in Sykes , as more fully detailed herein, was that because the wife was receiving significant pendente lite maintenance and child support, unless she was responsible for her own counsel fees, she had no incentive to resolve or move the case forward due to her lack of “skin in the game.”
As a result of the decision in Sykes, matrimonial practitioners are left contemplating when a court might apply this principal of “skin in the game.” This article addresses when and why a case may reach the tipping point that pushes it over the equal playing field presumption inherent in Domestic Relations Law (DRL) ' 237 to the “skin in the game” analysis, as described in Sykes. As will be explained, this different approach appears to depend largely on several factors, including the length of the action, the animosity between the parties, the parties' separate property assets, the legal fees the monied spouse has already paid, and the marital assets at issue.
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