How Divorce Law in New York State Favors the Spouse With the Financial Advantage
In theory, divorcing couples in New York State have access to equal justice under the law, regardless of how much, or how little, money each spouse has. This principle is clear in both statutory and case law in all four appellate departments. However, money talks. The monied spouse can afford not only to hire the best legal talent but also to pay the legal costs of extending the litigation in hopes of gaining a favorable outcome in the case. While New York has enacted statutes designed to ensure an even economic playing field, the statutes – DRL § 237 and CPLR 5519(a)(2) and (3) – clash with one another, often to the detriment of the non-monied spouse. We believe this clash was an unintended consequence of an otherwise admirable attempt by the Legislature to assure spousal parity. We also believe it is time, past time really, for the Legislature to correct this imbalance.
This article examines the factors that led to the clash between DRL § 237 and CPLR 5519(a)(2) and (3), what the consequences have been for divorcing couples, and what the Legislature might do to end the conflict.
The Competing Provisions of DRL § 237(a) and CPLR 5519(a)
DRL § 237(a) mandates an award of interim counsel fees by a monied spouse to a non-monied spouse. The purpose of the statute, as explained by the Court of Appeals in O’Shea v. O’Shea, is “to redress the economic disparity between the monied spouse and the non-monied spouse. Recognizing that the financial strength of matrimonial litigants is often unequal – working more typically against the wife – the Legislature afforded trial judges with discretion to compel more affluent spouses to pay legal expenses of the needier one [so that] the matrimonial scales of justice are not unbalanced by the weight of the wealthier spouse’s wallet.” 
Public policy dictates less-monied spouses should not be disadvantaged in their divorce litigations as seen in the often-cited cases of Charpie v. Charpie and Prichep v. Prichep.In Charpie, the Appellate Division, First Department, held that courts must consider the relative financial circumstances of both parties when deciding interim fee applications to prevent the titled spouse from using resources against the non-titled spouse in a manner that affects the action’s equitable outcome. In Prichep, the Appellate Division, Second Department, noted that while counsel fee awards should be controlled by the equities of each particular case, significant disparities in the parties’ financial circumstances generally warrant an award of interim counsel fees to the non-monied spouse rather than deferring the award of professional fees to trial. The state Legislature clearly understood, as DRL § 237(a) was amended in 2010 to create a “rebuttable presumption” that interim counsel fees be awarded to the less monied spouse on a timely and ongoing basis subject to the court’s discretion and the circumstances of the case (L.2010, c. 239, sec 1).
Undermining the public policy goals of DRL § 237 in certain cases is CPLR 5519(a)(2), permitting a party, ordered to pay a sum of money, to obtain an automatic stay of that obligation by posting an undertaking in the amount of the sum owed, pending appeal of the order. Similarly, where an order directs the payment of money in fixed installments, a stay may be awarded upon posting an undertaking in a sum set by the court, pending appeal (see CPLR 5519(a)(3)). While CPLR 5519 has obvious utility to parties aggrieved by trial judgments pending appeal and secures those judgments by the posting undertakings, the use of CPLR 5519’s stay provisions against the payment of interim matrimonial counsel fee awards causes actual prejudice to non-monied spouses, depriving them of much needed resources for whom DRL 237 was designed to assure. This is particularly true currently, during which an increase in appeals coupled with judicial vacancies at each of our Appellate Departments is at its height. The appellate process is protracted. In complex matrimonial litigation, both spouses need competent counsel, and attorneys cannot afford to represent non-monied litigants without compensation.
Relevant Legislative History
CPLR 5519 was enacted in 1962 as part of the omnibus conversion of our state’s practice statutes from the former Civil Practice Act (CPA) to the CPLR. The predecessor statutes relevant here, primarily CPA §§ 594 through 598-a, were enacted in 1945. CPA § 594, which permitted the stay of an order pending appeal upon the posting of an undertaking, expressly excluded appeals of “temporary alimony orders” from the procedure. Interim maintenance and interim counsel fees, while distinct from one another, are nevertheless equally related to the financial needs of the less-monied spouse during matrimonial litigations. Arguably, no rationale exists for staying interim maintenance or interim counsel fees, both designed to permit the non-monied spouse to survive pendente lite.
Upon the enactment of CPLR 5519 in 1962, the language excepting interim maintenance awards from the statutory stay provisions was omitted for reasons that are unexplained by a review of the statute’s Bill Jackets annotating the legislative history and basis for statutory modification. Decisional authorities nevertheless carried forward the rule that CPLR 5519(a)(2) and (3) could not be used to stay the payment of interim maintenance or child support. The looser language of CPLR 5519(a)(2) and (3), in making no exception for interim maintenance, unlike its predecessor, preceded the appellate pronouncements of O’Shea, Charpie and Prichep, and other similar reported cases, as well as the language of DRL § 237(a), that interim counsel fees be presumptively awarded. In other words, the purpose to be served by DRL § 237(a) of infusing non-monied spouses with interim counsel fees was not yet considered when enacting the broad language of CPLR 5519(a)(2) and (3) permitting stays of interlocutory payments pending appeal, in exchange for a mere undertaking. As a result, there is currently a disconnect between the well-purposed public policy of DRL § 237(a) that presumptively favors the payment of interim counsel fees to non-monied spouses and CPLR 5519’s procedures permitting monied spouses to post an undertaking, appeal the order, avoid paying counsel fees pending appeal, and thereby perpetuate the ongoing economic imbalance between monied and non-monied spouses to the detriment of non-monied litigants.
The Impact Upon Non-monied Spouses
The impact of this incongruity is clear in both high net worth as well as more modest matrimonial litigations. Often, one spouse typically controls the finances and may hold title to the vast majority of the family’s assets. A dynamic is created where, although the non-titled spouse has an “equitable interest” in the assets acquired during the marriage, a non-titled spouse has no access to those resources during the pendency of the divorce. Under those circumstances, unless the titled spouse voluntarily advances funds for counsel fees and litigation expenses, such as valuation experts, appraisers, and accountants, non-titled spouses are required to make expensive and often time-consuming applications to the Supreme Court for orders directing transfers of funds for those costs. In many instances, the legal costs incurred in this motion practice can be as expensive as the ultimate awards. However, attorney fees and litigation costs are often advanced “without prejudice and subject to reallocation” at the conclusion of the case, which specifically advises the non-monied spouse that he or she might ultimately be charged with those fees and expenses. This has been referred to by some courts as having “skin in the game.” Neither party is prejudiced by the awards of counsel fees pendente lite when subject to later reallocation. These awards depend upon the sound discretion of the trial courts and the size of the marital estate being divided.
Even non-monied spouses in high net-worth matrimonial actions are adversely affected. DRL § 237(a) provides no specific definition for the “less-monied spouse,” and the concept is not necessarily limited to marital estates of modest or average value. A multimillion-dollar marital estate, in which both parties would retain millions of dollars by way of equitable distribution, for example, would typically result in each party paying its own fees, absent extraordinary reasons to assign fees to a party engaged in overly aggressive or unnecessarily protracted litigation tactics.
It is clear, however, that when one spouse has free and unbridled access to substantial financial resources, often multiple millions of dollars when the bulk of the marital estate is titled to one spouse, and the other spouse has comparatively minimal access, the latter is at a cognizable disadvantage and, arguably, should be considered a “less-monied spouse.” The titled spouse has no impediments to hiring and paying prominent experienced attorneys from prestigious and expensive law firms, and forensic experts, private investigators, valuation consultants, economists, vocational experts, real estate appraisers and others, costing hundreds of thousands and even millions of dollars, without affecting lifestyle one iota. The non-titled spouse may not share that same luxury. Former Presiding Justice Gail Prudenti of the Second Department said it best in Prichep:
“When an action for a divorce is commenced, it is often the case that most of the marital assets available for the payment of legal fees are possessed or controlled by one of the spouses, usually the husband. In order to ensure that the parties will have equal access to skilled legal representation, the Domestic Relations Law authorizes awards of interim counsel fees to the nonmonied spouse during the course of the litigation. Because of the importance of such awards to the fundamental fairness of the proceedings, we hold that an application for interim counsel fees to the nonmonied spouse in a divorce action should not be denied – or deferred until after the trial, which functions as a denial – without good cause, articulated by a court in a written decision.”
Similarly, CPLR 5519 should not function to deny necessary pendente lite counsel fees in matrimonial litigation to spouses with less access to funding than the titled spouse. Even though the non-titled spouse may be living an affluent lifestyle, keeping pace with litigation strategies against a spouse with virtually infinite resources can prove nearly impossible. The less-monied spouse is not required to exhaust finite assets before receiving periodic infusions of pendente lite professional fees from the more monied spouse.
Recognition of the Problem in Wechsler v. Wechsler and Karg v. Kern
Some courts have recognized the discrete problems posed by CPLR 5519 stays of interim counsel fee awards. The non-monied spouse, faced with an automatic or discretionary stay of an interim counsel fee award, may move in the trial court to vacate the stay, as in Wechsler v. Wechsler. There, Justice Judith Gische, while then presiding in the Matrimonial Part of the Supreme Court, New York County, noted that the husband had filed two post-stay applications for additional experts to value an asset based on different valuation dates, never claiming that he could not afford the expense. Meanwhile, his CPLR 5519(a) stay of the wife’s pendente lite counsel fee award restricted her ability to pay her own professionals, raising concern that “the outcome of [the] divorce litigation [be] influenced by one party’s greater ability to bankroll it” The court vacated the stay as unnecessary to protect the husband’s rights, even were he to succeed on appeal. Following precedent of the Court of Appeals in Frankel v. Frankel, Gober v. Gober, Charpie v. Charpie, supra, and others, Justice Gische concluded:
“By appealing a decision awarding a non-monied spouse interim counsel fees, and then bonding the award to stay enforcement pending appeal, a monied spouse can compromise a nonmonied spouse’s ability to litigate the ongoing case proceeding at the trial level. The effect of the stay is to prevent the non-monied spouse from receiving money to pay professionals as the case continues. Thus, the monied spouse achieves indirectly what it could not do directly, depriving the nonmonied spouse of the ability to pay for representation while the case is ongoing. Since appeals need not be perfected for up to nine months in the First Department (22 NYCRR § 600.11), this strategy may be used to obtain an unfair litigation advantage that the underlying interim award was intended to prevent in the first place.”
Ten years later, in Karg v. Kern, the First Department affirmed the vacatur of an automatic stay of interim matrimonial counsel fees. The court held that the CPLR 5519 stay “prevent[ed] an even playing field in the litigation” and that the defendant could potentially recoup the award from the plaintiff’s eventual share of equitable distribution. Karg made clear the precedent of the First Department – that enforcement of pendente lite counsel fees should not be stayed pending appeal pursuant to CPLR 5519.
The Second, Third and Fourth Departments have no reported decisions that meaningfully examine the interplay between the DRL § 237(a) and CPLR 5519(a)(2) and (3) and, unlike the First Department, have not discussed how or why interim counsel fee awards continue to be stayed pending appeal.
The Impact Upon Retaining Counsel
A significant public policy impact is spawned from the tension between DRL § 237(a) and CPLR 5519(a). Stays of interim counsel fee awards frustrates non-monied spouses retaining and maintaining representation by attorneys of comparable caliber to those representing monied spouses. The more significant the marital estate, the more incentive for a titled spouse to protract the case. The delays of successive rounds of motions, adjournments, discovery, trials and appeals can span years during which non-titled spouses are without a share of the marital estate. Attorneys are often disinclined to represent clients without access to funds even in high net-worth matrimonial actions. This is especially concerning when litigation promises to be complicated, protracted, and expensive, while creating the potential for extraordinary and mounting accounts receivable that plague a firm’s balance sheet, and, in extreme cases, challenge a small firm’s continued viability. As noted in Justice Scheinkman’s Practice Commentaries, “The concern is that attorneys and other needed experts would not elect to represent spouses who could not afford to pay for their services absent the power of the court to charge the adverse party with the responsibility for payment.” This concern is heightened if CPLR 5519(a) continues as a tactic to deprive non-monied spouses of funds needed to compete with the demands of a protracted matrimonial litigation.
In 2017, and again in 2020, the NYSBA Committee on the CPLR was presented with a legislative solution to the conundrum discussed in this article. An amendment was proposed to slightly modify CPLR 5519 in matters to add the words “Except in actions brought pursuant to the DRL and FCA.” In matrimonial and family law matters this modification makes sense regarding pendente lite applications. The CPLR Committee suggested the proposed amendment be examined by the NYSBA Family Law Section instead (even though the proposed amendment would be to the CPLR). Since COVID-19 in spring 2020, no further efforts have been made to amend the statute. Those efforts should be addressed.
Obviously, the best way to address the unintended consequence created by the conflict between these two statutes is for the Legislature to examine whether the current language of CPLR 5519(a)(2) and (a)(3) appropriately fits within the context of family law matters, given clear judicial precedents and legislative intent to vest non-monied spouses with sufficient resources to defend costly and often imbalanced matrimonial litigations. The authors here submit that the dictates of CPLR 5519 were never intended to apply to pendente lite professional fee applications in matrimonial/family law matters. The prejudice engendered by a stay of pendente lite counsel fees to non-monied spouses is far too great and is in stark contrast to the clear body of New York State case law and statutory authority in the DRL. Failing that, non-monied spouses unable to endure the effect of appellate stays must unfortunately rely upon motions to vacate the stays pending appeal, and the willingness of courts to grant them when grounds exist for doing so. A second solution is that trial courts create parity more freely when awarding pendente lite counsel fees in matrimonial litigation when one spouse is quite clearly in a far superior economic position, exerting control over the process simply because that spouse can afford to do so. All else being equal, the provisions of CPLR 5519(a), which are of general applicability, should perhaps yield to the more specific provisions of DRL § 237(a) when deciding the vacatur motions, lifting such stays of enforcement of counsel fee awards in matrimonial action.
Neil E. Kozek is a partner at the law firm of Kramer Kozek in White Plains, N.Y. concentrating in matrimonial litigation, collaborative divorce, and mediation. He is a Fellow of both the New York Chapter of the American Academy of Matrimonial Lawyers and International Academy of Family Lawyers.
Mark C. Dillon is a Justice of the New York Supreme Court, Appellate Division, Second Department, an adjunct professor of New York practice at Fordham Law School, and a contributing author of CPLR Practice Commentaries published in McKinney’s Consolidated Laws of NY Annotated.
 O’Shea v. O’Shea, 93 N.Y.2d 187, 190 (1999).
 271 A.D.2d 169 (1st Dep’t 2000).
 52 A.D.3d 61 (2d Dep’t 2008).
 See Charpie, 271 A.D.2d at 271–72.
 See Prichep, 52 A.D.3d at 65.
 See 11 N.Y. Jud. Council Rep. 273-93 (1945).
 See Finkelstein v. Finkelstein, 286 A.D. 965 (1st Dep’t 1955).
 See Du Jack v. Du Jack, 243 A.D.2d 908 (3d Dep’t 1997); McKiernan v. McKiernan, 223 A.D.2d 917 (3d Dep’t 1996); Greene v. Greene, 71 Misc. 2d 708 (Sup. Ct. Westchester Co. 1972).
 See Sykes v. Sykes, 41 Misc. 3d 1061, 1063 (Sup. Ct. NY Co. 2013).
 See Wyser-Pratte v. Wyser-Pratte, 68 A.D.3d 624 (1st Dep’t 2009) [upholding denial of request for counsel fees since equitable distribution will provide wife with adequate funds to pay her attorney); Grumet v. Grumet, 37 A.D.3d 534 (2d Dep’t 2007) (reducing the award of counsel fees to wife by half in light of the wife’s receipt of a large distributive award and the fact that she possesses substantial assets sufficient to enable her to pay a significant portion of her litigation expenses); Meshholam v. Mesholam, 25 A.D.3d 670, 672 (2d Dep’t 2006) (overturning counsel fee award to wife as an abuse of discretion in part due to wife’s “significant resources resulting from the equitable distribution of marital property”); Sykes v. Sykes, 41 Misc. 3d 1061 (ordering the release of marital funds to pay counsel fees where the wife would receive approximately $10 million as her share of equitable distribution and despite the husband’s greater earnings, finding that the financial circumstances of the parties were not disparate enough to justify husband paying a portion of wife’s fees).
 See Prichep v. Prichep, 52 A.D.3d at 62.
 See id. at 66.
 8 Misc.3d 328 (Sup. Ct., N.Y. Co. 2005).
 Id., 8 at 332.
 2 N.Y.3d 601 (2004).
 282 A.D.2d 392 (1st Dep’t 2001).
 125 A.D.3d 527 (1st Dep’t 2015).
 Id. at 529.
 See Frankel v. Frankel, 2 N.Y.3d 601, 605, n. 1.
 See Alan D. Scheinkman, Practice Commentaries, McKinney’s Cons. Laws of NY, Book 14, DRL 237:1 at 9 (2010).