Docket No. A-5013-18T1
Decided January 28, 2021
Submitted by New Jersey Family Lawyer, Jeffrey Hark.
In a recent unpublished decision the Appellate Division reversed a trial court’s decision to award plaintiff $40,000 in counsel fees payable by defendant at the conclusion of their divorce.
In Wilk, The parties were married for eighteen years when plaintiff filed her complaint for divorce in 2016. The parties had one child who was adult, thereby leaving the issues of alimony, equitable distribution, and counsel fees to be resolved. Defendant was the breadwinner and plaintiff the homemaker. Plaintiff had counsel throughout the divorce matter and defendant was self-represented.
The parties appeared for trial on February 7, 2018, but represented to the trial judge they settled the matter. In court, they prepared a handwritten term sheet reflecting the settlement, which was marked as a joint exhibit. It provided defendant would pay plaintiff $40,000 per year in open duration alimony, and equitable distribution of defendant’s pension and thrift plan, marital bank accounts, and the former marital residence. Furthermore, the parties agreed plaintiff’s counsel would submit a certification of services for the judge to determine counsel fees and defendant would have the opportunity to respond and oppose the award of counsel fees as well as challenge the $25,000 in fees paid to plaintiff pendente lite.
Thereafter, each party provided testimony confirming they entered into the settlement agreement voluntarily. They agreed plaintiff’s counsel would prepare a property settlement agreement, transmit it to defendant, and the parties would appear for an uncontested divorce hearing a week later. The parties returned to court on February 15, 2018, without a written property settlement agreement.
Post-judgment, plaintiff filed a motion to address the life insurance and counsel fee issues. On August 1, 2018, plaintiff’s counsel submitted a certification of services addressing the Rule 5:3-5(c) and RPC 1.5(a) factors for an award of fees. Counsel certified plaintiff incurred a total of $80,694.34 in counsel fees and costs and sought an award in that amount. Defendant retained counsel who opposed the request.
The trial Judge issued a five-page statement of reasons, outlining the factors of R. 5:3-5(c) and concluding defendant should pay $40,000 of plaintiff’s counsel fees. Defendant appealed and the Appellate Division remanded because the Judge failed to provide which factors weighed in favor of the ruling and how the Judge decided $40,000 was reasonable.
Counsel fees are always an issue when lawyers are involved in a divorce. A counsel fee award is completely in the trial court’s discretion, so long as the Court outlines the factors in R. 5:3-5(c). The award can only be overturned if the Appellate Division finds an abuse of discretion – a very high standard. Therefore, it is important to try and get an agreement on the issue beforehand, that way you know for certain what the result will be with regard to counsel fees.
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