In almost all contested matters, the issue arises as to whether one party should pay the counsel fees of the other. Without getting into legal technicalities, it depends on two (2) major factors, aside from the reasonableness of the fees:
- Is the financial ability to pay counsel fees by one spouse that much greater than the spouse seeking the contribution?
- Did the spouse against whom counsel fees are sought act in good faith throughout the process?
If the case is uncontested, counsel fees are not an issue as the parties have agreed on how to handle them. However, in a litigated or contested case, counsel fees can be substantial and therefore become a major issue. As mentioned in prior topics on this website, at the outset of a case, if the playing field is so lop-sided because one party has the ability to fund the litigation and the other does not, the Court can order the spouse that is in that better position to pay towards the counsel fees of the other spouse. If the counsel fees are significant, mainly due to the unreasonableness or bad faith of a party, the unreasonable party will most likely receive no counsel fees (even if more economically disadvantaged than the other).
The bottom line is, the Court determines counsel fees on a case-by-case basis. The attorney on behalf of his or her client will submit an Affidavit listing all the fees and why the other spouse should pay for them.