NY State Assembly Bill 2009-A7569

Assembly Bill A7569

Signed By Governor

2009-2010 Legislative Session

Provides for the payment of all counsel and expert fees in matrimonial actions by the more monied party to such action

download bill text pdf

Archive: Last Bill Status - Signed by Governor

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Oct 08, 2010	approval memo.18
Aug 13, 2010	signed chap.329
Aug 03, 2010	delivered to governor
Jun 15, 2010	returned to assembly passed senate
May 27, 2010	3rd reading cal.612 substituted for s4532a
May 18, 2010	referred to codes delivered to senate passed assembly
Apr 28, 2010	amended on third reading 7569a
Jan 06, 2010	ordered to third reading cal.498 returned to assembly died in senate
May 06, 2009	referred to judiciary delivered to senate passed assembly
Apr 30, 2009	advanced to third reading cal.495
Apr 27, 2009	reported
Apr 20, 2009	reported referred to codes
Apr 15, 2009	referred to judiciary

Votes

- Jun 15, 2010 - Floor Vote
  A7569
  
  60
  
  Aye
  
  1
  
  Nay
  
  0
  
  Absent
  
  1
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: Jun 15, 2010
      
      aye (60)
      
      Adams
      
      Addabbo Jr.
      
      Alesi
      
      Aubertine
      
      Bonacic
      
      Breslin
      
      Diaz
      
      Dilan
      
      Duane
      
      Espada
      
      Farley
      
      Flanagan
      
      Foley
      
      Fuschillo
      
      Golden
      
      Griffo
      
      Hannon
      
      Hassell-Thompson
      
      Huntley
      
      Johnson
      
      Johnson
      
      Klein
      
      Krueger
      
      Kruger
      
      LaValle
      
      Lanza
      
      Larkin
      
      Leibell
      
      Libous
      
      Little
      
      Marcellino
      
      Maziarz
      
      McDonald
      
      Montgomery
      
      Nozzolio
      
      Onorato
      
      Oppenheimer
      
      Padavan
      
      Parker
      
      Peralta
      
      Perkins
      
      Ranzenhofer
      
      Robach
      
      Saland
      
      Sampson
      
      Savino
      
      Schneiderman
      
      Serrano
      
      Seward
      
      Skelos
      
      Smith
      
      Squadron
      
      Stachowski
      
      Stavisky
      
      Stewart-Cousins
      
      Thompson
      
      Valesky
      
      Volker
      
      Winner
      
      Young
      
      nay (1)
      
      DeFrancisco
      
      excused (1)
      
      Morahan

Bill Amendments

Original

A (Active)

2009-A7569 - Details

See Senate Version of this Bill:: S4532
Law Section:: Domestic Relations Law
Laws Affected:: Amd §§237 & 238, Dom Rel L

2009-A7569 - Summary

Provides for the payment of all counsel and expert fees in matrimonial actions by the more monied party to such action; adds actions to obtain maintenance or distribution of property after a foreign judgment of divorce to the actions for which such fees shall be awarded; directs the court to assure that each party is adequately represented; such actions shall also include actions to enforce a court order.

2009-A7569 - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7569

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                             April 15, 2009
                               ___________

Introduced  by  M.  of  A.  WEINSTEIN  --  read once and referred to the
  Committee on Judiciary

AN ACT to amend the domestic relations law, in relation to  the  payment
  of counsel and expert fees in matrimonial actions

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivisions (a) and (b) of section  237  of  the  domestic
relations  law, subdivision (a) as amended by chapter 482 of the laws of
1987 and subdivision (b) as amended by chapter 892 of the laws of  1986,
are amended to read as follows:
  (a)  In any action or proceeding brought (1) to annul a marriage or to
declare the nullity of a void marriage, or (2) for a separation, or  (3)
for  a  divorce, or (4) to declare the validity or nullity of a judgment
of divorce rendered against a spouse who was the defendant in any action
outside the State of New York and did not appear  therein  where    such
spouse  asserts the nullity of such foreign judgment, [or] (5) TO OBTAIN
MAINTENANCE OR DISTRIBUTION OF PROPERTY FOLLOWING A FOREIGN JUDGMENT  OF
DIVORCE,  OR  (6) to enjoin the prosecution in any other jurisdiction of
an action for a divorce, the court may direct either spouse   or,  where
an  action  for annulment is maintained after the death of a spouse, may
direct the person or persons maintaining the action, to pay [such sum or
sums of money] COUNSEL FEES AND FEES AND EXPENSES OF EXPERTS directly to
the  attorney of the other spouse to  enable  [that  spouse]  THE  OTHER
PARTY  to carry on or defend the action or proceeding as, in the court's
discretion, justice requires, having regard to the circumstances of  the
case  and of the respective parties. [Such direction must be made in the
final judgment in such action or proceeding, or by one  or  more  orders
from time to time before final judgment, or by both such order or orders
and  the final judgment; provided, however, such direction shall be made
prior to final judgment where it is shown that such order is required to
enable the petitioning party to properly proceed] THERE SHALL BE REBUTT-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11112-03-9

A. 7569                             2

ABLE PRESUMPTION THAT COUNSEL FEES SHALL BE AWARDED TO THE  LESS  MONIED
SPOUSE.  IN  EXERCISING  THE COURT'S DISCRETION, THE COURT SHALL SEEK TO
ASSURE THAT EACH PARTY SHALL BE ADEQUATELY REPRESENTED  AND  THAT  WHERE
FEES  AND  EXPENSES ARE TO BE AWARDED, THEY SHALL BE AWARDED ON A TIMELY
BASIS, PENDENTE LITE, SO AS TO ENABLE ADEQUATE REPRESENTATION  FROM  THE
COMMENCEMENT  OF  THE PROCEEDING. APPLICATIONS FOR THE AWARD OF FEES AND
EXPENSES MAY BE MADE AT ANY TIME OR TIMES PRIOR TO FINAL JUDGMENT.  BOTH
PARTIES  TO  THE  ACTION  OR  PROCEEDING AND THEIR RESPECTIVE ATTORNEYS,
SHALL FILE AN AFFIDAVIT WITH THE COURT DETAILING THE FINANCIAL AGREEMENT
BETWEEN THE PARTY AND THE ATTORNEY. SUCH  AFFIDAVIT  SHALL  INCLUDE  THE
AMOUNT OF ANY RETAINER, THE AMOUNTS PAID AND STILL OWING THEREUNDER, THE
HOURLY  AMOUNT CHARGED BY THE ATTORNEY, THE AMOUNTS PAID, OR TO BE PAID,
ANY EXPERTS, AND ANY ADDITIONAL COSTS,  DISBURSEMENTS  OR  EXPENSES.  IN
FIXING  FEES  AND  EXPENSES  WHICH THE COURT DETERMINES SHALL BE PAID BY
EITHER PARTY TO ENABLE THE OTHER PARTY TO CARRY ON OR DEFEND THE  ACTION
OR PROCEEDING, THE COURT SHALL FIX THE AMOUNT TO BE PAID FOR SUCH PROSE-
CUTION  OR DEFENSE OF THE ACTION OR PROCEEDING AT AN AMOUNT EQUAL TO THE
HOURLY RATE ORDINARILY AND CUSTOMARILY CHARGED BY THE ATTORNEY  FOR  THE
PARTY REQUIRED TO PAY SUCH COUNSEL FEES; PROVIDED, HOWEVER, IF THE HOUR-
LY RATE ORDINARILY AND CUSTOMARILY CHARGED BY THE ATTORNEY FOR THE PARTY
PETITIONING  FOR  SUCH  AWARD  IS LOWER, SUCH FEES SHALL BE FIXED AT THE
HOURLY RATE ORDINARILY AND CUSTOMARILY CHARGED BY SUCH ATTORNEY FOR SUCH
LEGAL SERVICES. THE FOREGOING PROVISION SHALL NOT BAR AN AWARD FOR COUN-
SEL FEES AT A RATE HIGHER THAN THE FEES CHARGED BY THE ATTORNEY FOR  THE
PARTY  REQUIRED  TO  PAY SUCH COUNSEL FEES IN APPROPRIATE CIRCUMSTANCES.
Any applications for [counsel] fees and expenses may  be  maintained  by
the  attorney  for either spouse in his own name in the same proceeding.
PAYMENT OF ANY RETAINER FEES TO THE ATTORNEY FOR THE  PETITIONING  PARTY
SHALL NOT PRECLUDE ANY AWARDS OF FEES AND EXPENSES TO AN APPLICANT WHICH
WOULD OTHERWISE BE ALLOWED UNDER THIS SECTION.
  (b) Upon any application to ENFORCE, annul or modify an order or judg-
ment for alimony, MAINTENANCE, DISTRIBUTIVE AWARD, DISTRIBUTION OF MARI-
TAL PROPERTY or for custody, visitation, or maintenance of a child, made
as  in  section  two  hundred thirty-six or section two hundred forty OF
THIS ARTICLE provided, or upon any application by writ of habeas  corpus
or by petition and order to show cause concerning custody, visitation or
maintenance  of  a child, the court may direct a spouse or parent to pay
[such sum or sums of money for the prosecution or the defense of]  COUN-
SEL  FEES  AND  FEES AND EXPENSES OF EXPERTS DIRECTLY TO THE ATTORNEY OF
THE OTHER SPOUSE OR PARENT TO ENABLE THE OTHER  PARTY  TO  CARRY  ON  OR
DEFEND  the  application or proceeding by the other spouse or parent as,
in the court's  discretion,  justice  requires,  having  regard  to  the
circumstances  of  the case and of the respective parties. [With respect
to any such application or proceeding, such direction may be made in the
order or judgment by which the particular application or  proceeding  is
finally  determined,  or  by one or more orders from time to time before
the final order or judgment, or by both such order  or  orders  and  the
final  order  or  judgment] THERE SHALL BE A REBUTTABLE PRESUMPTION THAT
COUNSEL FEES SHALL BE AWARDED TO THE LESS MONIED SPOUSE.  IN  EXERCISING
THE  COURT'S  DISCRETION, THE COURT SHALL SEEK TO ASSURE THAT EACH PARTY
SHALL BE ADEQUATELY REPRESENTED AND THAT WHERE FEES AND EXPENSES ARE  TO
BE  AWARDED,  THEY SHALL BE AWARDED ON A TIMELY BASIS, PENDENTE LITE, SO
AS TO ENABLE  ADEQUATE  REPRESENTATION  FROM  THE  COMMENCEMENT  OF  THE
PROCEEDING.  APPLICATIONS FOR THE AWARD OF FEES AND EXPENSES MAY BE MADE
AT ANY TIME OR TIMES PRIOR TO FINAL JUDGMENT. BOTH PARTIES TO THE ACTION
OR  PROCEEDING  AND  THEIR RESPECTIVE ATTORNEYS, SHALL FILE AN AFFIDAVIT

A. 7569                             3

WITH THE COURT DETAILING THE FINANCIAL AGREEMENT, BETWEEN THE PARTY  AND
THE  ATTORNEY.  SUCH AFFIDAVIT SHALL INCLUDE THE AMOUNT OF ANY RETAINER,
THE AMOUNTS PAID AND STILL OWING THEREUNDER, THE HOURLY  AMOUNT  CHARGED
BY  THE  ATTORNEY, THE AMOUNTS PAID, OR TO BE PAID, ANY EXPERTS, AND ANY
ADDITIONAL COSTS, DISBURSEMENTS OR EXPENSES. IN FIXING FEES AND EXPENSES
WHICH THE COURT DETERMINES SHALL BE PAID BY EITHER PARTY TO  ENABLE  THE
OTHER  PARTY  TO  CARRY ON OR DEFEND THE ACTION OR PROCEEDING, THE COURT
SHALL FIX THE AMOUNT TO BE PAID FOR SUCH PROSECUTION OR DEFENSE  OF  THE
ACTION  OR  PROCEEDING  AT AN AMOUNT EQUAL TO THE HOURLY RATE ORDINARILY
AND CUSTOMARILY CHARGED BY THE ATTORNEY FOR THE PARTY  REQUIRED  TO  PAY
SUCH  COUNSEL FEES; PROVIDED, HOWEVER, IF THE HOURLY RATE ORDINARILY AND
CUSTOMARILY CHARGED BY THE ATTORNEY FOR THE PARTY PETITIONING  FOR  SUCH
AWARD  IS  LOWER, SUCH FEES SHALL BE FIXED AT THE HOURLY RATE ORDINARILY
AND CUSTOMARILY CHARGED BY SUCH ATTORNEY FOR SUCH  LEGAL  SERVICES.  THE
FOREGOING  PROVISION  SHALL  NOT BAR AN AWARD FOR COUNSEL FEES AT A RATE
HIGHER THAN THE FEES CHARGED BY THE ATTORNEY FOR THE PARTY  REQUIRED  TO
PAY SUCH COUNSEL FEES IN APPROPRIATE CIRCUMSTANCES. Any applications for
[counsel] fees and expenses may be maintained by the attorney for either
spouse in counsel's own name in the same proceeding.  [Representation by
an attorney pursuant to paragraph (b) of subdivision nine of section one
hundred  eleven-b of the social services law shall not preclude an award
of counsel fees to an applicant which would otherwise be  allowed  under
this  section.]  PAYMENT  OF  ANY  RETAINER FEES TO THE ATTORNEY FOR THE
PETITIONING PARTY SHALL NOT PRECLUDE ANY AWARDS OF FEES AND EXPENSES  TO
AN APPLICANT WHICH WOULD OTHERWISE BE ALLOWED UNDER THIS SECTION.
  S  2. Section 238 of the domestic relations law, as amended by chapter
529 of the laws of 1978, is amended to read as follows:
  S 238. Expenses in enforcement AND MODIFICATION proceedings.   In  any
action or proceeding to [compel the payment of any sum of money required
to  be  paid  by] ENFORCE OR MODIFY ANY PROVISION OF a judgment or order
entered in an action for divorce, separation, annulment  [or],  declara-
tion  of  nullity of a void marriage, DECLARATION OF VALIDITY OR NULLITY
OF A JUDGEMENT OF DIVORCE RENDERED AGAINST A SPOUSE WHO WAS THE  DEFEND-
ANT IN ANY ACTION OUTSIDE THE STATE OF NEW YORK AND DID NOT APPEAR THER-
EIN  WHERE  SUCH SPOUSE ASSERTS THE NULLITY OF SUCH FOREIGN JUDGMENT, OR
AN INJUNCTION RESTRAINING THE PROSECUTION IN ANY OTHER  JURISDICTION  OF
AN  ACTION  FOR  A DIVORCE, or in any proceeding pursuant to section two
hundred forty-three, two hundred forty-four, two hundred forty-five,  or
two  hundred  forty-six OF THIS ARTICLE, the court may in its discretion
require either party to pay [the expenses  of  the  other  in  bringing,
carrying  on,  or  defending such action or proceeding] COUNSEL FEES AND
FEES AND EXPENSES OF EXPERTS DIRECTLY TO THE ATTORNEY OF THE OTHER PARTY
TO ENABLE THE OTHER PARTY TO CARRY ON OR DEFEND THE ACTION OR PROCEEDING
AS, IN THE COURT'S DISCRETION, JUSTICE REQUIRES  HAVING  REGARD  TO  THE
CIRCUMSTANCES  OF THE CASE AND OF THE RESPECTIVE PARTIES. THERE SHALL BE
A REBUTTABLE PRESUMPTION THAT COUNSEL FEES SHALL BE AWARDED TO THE  LESS
MONIED SPOUSE. In any such action or proceeding, applications for [coun-
sel] fees and expenses may be maintained by the attorney for the respec-
tive  parties  in  counsel's  own  name and in counsel's own behalf.  IN
EXERCISING THE COURT'S DISCRETION, THE COURT SHALL SEEK TO  ASSURE  THAT
EACH  PARTY  SHALL  BE  ADEQUATELY  REPRESENTED  AND THAT WHERE FEES AND
EXPENSES ARE TO BE AWARDED, THEY SHALL BE AWARDED  ON  A  TIMELY  BASIS,
PENDENTE  LITE,  SO  AS  TO  ENABLE  ADEQUATE  REPRESENTATION  FROM  THE
COMMENCEMENT OF THE PROCEEDING.  APPLICATIONS FOR THE AWARD OF FEES  AND
EXPENSES  MAY BE MADE AT ANY TIME OR TIMES PRIOR TO FINAL JUDGMENT. BOTH
PARTIES TO THE ACTION OR PROCEEDING AND THEIR REPRESENTATIVE  ATTORNEYS,

A. 7569                             4

SHALL FILE AN AFFIDAVIT WITH THE COURT DETAILING THE FINANCIAL AGREEMENT
BETWEEN  THE  PARTY  AND  THE ATTORNEY. SUCH AFFIDAVIT SHALL INCLUDE THE
AMOUNT OF ANY RETAINER, THE AMOUNTS PAID AND STILL OWING THEREUNDER, THE
HOURLY  AMOUNT CHARGED BY THE ATTORNEY, THE AMOUNTS PAID, OR TO BE PAID,
ANY EXPERTS, AND ANY ADDITIONAL COSTS,  DISBURSEMENTS  OR  EXPENSES.  IN
FIXING  FEES  AND  EXPENSES  WHICH THE COURT DETERMINES SHALL BE PAID BY
EITHER PARTY TO ENABLE THE OTHER PARTY TO CARRY ON OR DEFEND THE  ACTION
OR  PROCEEDING, THE COURT SHALL FIX AN AMOUNT TO BE PAID FOR SUCH PROSE-
CUTION OR DEFENSE OF THE ACTION OR PROCEEDING AT AN AMOUNT EQUAL TO  THE
HOURLY  RATE  ORDINARILY AND CUSTOMARILY CHARGED BY THE ATTORNEY FOR THE
PARTY REQUIRED TO PAY SUCH COUNSEL FEES; PROVIDED, HOWEVER, IF THE HOUR-
LY RATE ORDINARILY AND CUSTOMARILY CHARGED BY THE ATTORNEY FOR THE PARTY
PETITIONING FOR SUCH AWARD IS LOWER, SUCH FEES SHALL  BE  FIXED  AT  THE
HOURLY RATE ORDINARILY AND CUSTOMARILY CHARGED BY SUCH ATTORNEY FOR SUCH
LEGAL SERVICES. THE FOREGOING PROVISION SHALL NOT BAR AN AWARD FOR COUN-
SEL  FEES AT A RATE HIGHER THAN THE FEES CHARGED BY THE ATTORNEY FOR THE
PARTY REQUIRED TO PAY SUCH COUNSEL FEES  IN  APPROPRIATE  CIRCUMSTANCES.
PAYMENT  OF  ANY RETAINER FEES TO THE ATTORNEY FOR THE PETITIONING PARTY
SHALL NOT PRECLUDE ANY AWARDS OF FEES AND EXPENSES TO AN APPLICANT WHICH
WOULD OTHERWISE BE ALLOWED UNDER THIS SECTION.
  S 3. This act shall take effect on the one hundred twentieth day after
it shall have become a law and shall apply to  actions  and  proceedings
commenced  on or after such effective date.

co-Sponsors

2009-A7569A (ACTIVE) - Details

See Senate Version of this Bill:: S4532
Law Section:: Domestic Relations Law
Laws Affected:: Amd §§237 & 238, Dom Rel L

2009-A7569A (ACTIVE) - Summary

2009-A7569A (ACTIVE) - Sponsor Memo

                                BILL NUMBER:A7569A             REPLACEMENT 5/19/10

TITLE  OF BILL:  An act to amend the domestic relations law, in relation
to the payment of counsel and expert fees in matrimonial actions

PURPOSE OF BILL:  This bill provides for  a  rebuttable  presumption  of
interim  attorney's  fees to the non-monied spouse in a matrimonial case
or in proceedings to enforce a judgment therein. It also authorizes  the
court  to  order  expert  fees  to  be paid by one party to the other to
enable the party to carry on or defend the action.

SUMMARY OF PROVISIONS OF BILL:   Sections 237 and 238  of  the  Domestic
Relations  Law  are amended to provide for a presumption of counsel fees
to a non-monied spouse. In addition the court  is  authorized  to  order
expert  fees to be paid by one party to the other to enable the party to
carry on or defend the action. The parties are also required to  provide
financial  information  to  the  court  to  enable the court to make its
determination regarding counsel and expert fees.

JUSTIFICATION:  This bill would amend sections 237 and 238 of the Domes-
tic Relations Law to require the court  in  a  matrimonial  case,  or  a
proceeding to enforce a judgment therein, involving parties with greatly
unequal  financial  resources,  to order the monied party to pay interim
counsel fees for the non-monied party to enable her or him to  carry  on
or defend it.

Current  law places an onus upon the party in a matrimonial action seek-
ing counsel fees pendente lite, to show why  the  interests  of  justice
require  it. In addition, Judges appear reluctant to order pendente lite
counsel fee awards in matrimonial actions under the current statute.

A judicial order for pendente lite counsel fee awards in  a  matrimonial
proceeding  is  a  vital step in preventing an imbalance in the parties'
resources from affecting the proceeding's outcome. Given the  importance
of  pendente lite counsel fees, and the frequency of financial imbalance
between parties to matrimonial proceedings, it is inappropriate to place
the burden upon a non-monied spouse to  justify  it.  Therefore,  it  is
important  for  the  Legislature  to revise the statute, as proposed, to
create a rebuttable presumption that such relief should  be  granted  to
the  non-monied  spouse.  This  measure  requires  that in a matrimonial
action an order for pendente lite counsel fees and  expenses  should  be
granted  at  the outset of the case to ensure adequate representation of
the less monied spouse from the commencement of the proceeding,  and  it
is  left  to  the  affected  parties  to  show  why, in the interests of
justice, the order should not be made. This will better address  today's
economic  and  social realities, and will help ensure that no party to a
matrimonial  case  is  strategically  at  a  disadvantage  for  want  of
resources  to  pursue  or defend the case. Nothing precludes an award of
counsel fees to a  non-profit  legal  service  organization  where  such
organization  provides  legal  services without charge to a party who is
eligible for counsel fees under this measure. In addition, this  measure
is  not  intended  to  preclude a court's current discretionary power to

award counsel fees for services and expenses incurred before the  action
begins.

LEGISLATIVE HISTORY:  2009: A.7569-A/S.4532-A - Passed Assembly/S.Judi
2005-06; Similar A.8108 - Passed Assembly

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:  None.

EFFECTIVE DATE:  This act shall take effect on the sixtieth day after it
shall  have  become  a  law  and shall apply to any action or proceeding
commenced on or after such effective date.

2009-A7569A (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 7569--A
                                                        Cal. No. 498

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                             April 15, 2009
                               ___________

Introduced  by  M.  of  A.  WEINSTEIN,  O'DONNELL, JOHN -- read once and
  referred to the Committee on Judiciary  --  reported  from  committee,
  advanced  to a third reading, amended and ordered reprinted, retaining
  its place on the order of third reading

AN ACT to amend the domestic relations law, in relation to  the  payment
  of counsel and expert fees in matrimonial actions

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivisions (a) and (b) of section  237  of  the  domestic
relations  law, subdivision (a) as amended by chapter 482 of the laws of
1987 and subdivision (b) as amended by chapter 892 of the laws of  1986,
are amended to read as follows:
  (a)  In any action or proceeding brought (1) to annul a marriage or to
declare the nullity of a void marriage, or (2) for a separation, or  (3)
for  a  divorce, or (4) to declare the validity or nullity of a judgment
of divorce rendered against a spouse who was the defendant in any action
outside the State of New York and did not appear  therein  where    such
spouse  asserts the nullity of such foreign judgment, [or] (5) TO OBTAIN
MAINTENANCE OR DISTRIBUTION OF PROPERTY FOLLOWING A FOREIGN JUDGMENT  OF
DIVORCE,  OR  (6) to enjoin the prosecution in any other jurisdiction of
an action for a divorce, the court may direct either spouse   or,  where
an  action  for annulment is maintained after the death of a spouse, may
direct the person or persons maintaining the action, to pay [such sum or
sums of money] COUNSEL FEES AND FEES AND EXPENSES OF EXPERTS directly to
the  attorney of the other spouse to  enable  [that  spouse]  THE  OTHER
PARTY  to carry on or defend the action or proceeding as, in the court's
discretion, justice requires, having regard to the circumstances of  the
case  and of the respective parties. [Such direction must be made in the
final judgment in such action or proceeding, or by one  or  more  orders
from time to time before final judgment, or by both such order or orders
and  the final judgment; provided, however, such direction shall be made

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.

                                                           LBD11112-04-0

A. 7569--A                          2

prior to final judgment where it is shown that such order is required to
enable the petitioning party to properly proceed] THERE SHALL BE REBUTT-
ABLE PRESUMPTION THAT COUNSEL FEES SHALL BE AWARDED TO THE  LESS  MONIED
SPOUSE.  IN  EXERCISING  THE COURT'S DISCRETION, THE COURT SHALL SEEK TO
ASSURE THAT EACH PARTY SHALL BE ADEQUATELY REPRESENTED  AND  THAT  WHERE
FEES  AND  EXPENSES ARE TO BE AWARDED, THEY SHALL BE AWARDED ON A TIMELY
BASIS, PENDENTE LITE, SO AS TO ENABLE ADEQUATE REPRESENTATION  FROM  THE
COMMENCEMENT  OF  THE PROCEEDING. APPLICATIONS FOR THE AWARD OF FEES AND
EXPENSES MAY BE MADE AT ANY TIME OR TIMES PRIOR TO FINAL JUDGMENT.  BOTH
PARTIES  TO  THE  ACTION  OR  PROCEEDING AND THEIR RESPECTIVE ATTORNEYS,
SHALL FILE AN AFFIDAVIT WITH THE COURT DETAILING THE FINANCIAL AGREEMENT
BETWEEN THE PARTY AND THE ATTORNEY. SUCH  AFFIDAVIT  SHALL  INCLUDE  THE
AMOUNT OF ANY RETAINER, THE AMOUNTS PAID AND STILL OWING THEREUNDER, THE
HOURLY  AMOUNT CHARGED BY THE ATTORNEY, THE AMOUNTS PAID, OR TO BE PAID,
ANY EXPERTS, AND ANY ADDITIONAL COSTS, DISBURSEMENTS OR EXPENSES.    Any
applications  for  [counsel]  fees and expenses may be maintained by the
attorney for either spouse in his  own  name  in  the  same  proceeding.
PAYMENT  OF  ANY RETAINER FEES TO THE ATTORNEY FOR THE PETITIONING PARTY
SHALL NOT PRECLUDE ANY AWARDS OF FEES AND EXPENSES TO AN APPLICANT WHICH
WOULD OTHERWISE BE ALLOWED UNDER THIS SECTION.
  (b) Upon any application to ENFORCE, annul or modify an order or judg-
ment for alimony, MAINTENANCE, DISTRIBUTIVE AWARD, DISTRIBUTION OF MARI-
TAL PROPERTY or for custody, visitation, or maintenance of a child, made
as in section two hundred thirty-six or section  two  hundred  forty  OF
THIS  ARTICLE provided, or upon any application by writ of habeas corpus
or by petition and order to show cause concerning custody, visitation or
maintenance of a child, the court may direct a spouse or parent  to  pay
[such  sum or sums of money for the prosecution or the defense of] COUN-
SEL FEES AND FEES AND EXPENSES OF EXPERTS DIRECTLY TO  THE  ATTORNEY  OF
THE  OTHER  SPOUSE  OR  PARENT  TO ENABLE THE OTHER PARTY TO CARRY ON OR
DEFEND the application or proceeding by the other spouse or  parent  as,
in  the  court's  discretion,  justice  requires,  having  regard to the
circumstances of the case and of the respective parties.  [With  respect
to any such application or proceeding, such direction may be made in the
order  or  judgment by which the particular application or proceeding is
finally determined, or by one or more orders from time  to  time  before
the  final  order  or  judgment, or by both such order or orders and the
final order or judgment] THERE SHALL BE A  REBUTTABLE  PRESUMPTION  THAT
COUNSEL  FEES  SHALL BE AWARDED TO THE LESS MONIED SPOUSE. IN EXERCISING
THE COURT'S DISCRETION, THE COURT SHALL SEEK TO ASSURE THAT  EACH  PARTY
SHALL  BE ADEQUATELY REPRESENTED AND THAT WHERE FEES AND EXPENSES ARE TO
BE AWARDED, THEY SHALL BE AWARDED ON A TIMELY BASIS, PENDENTE  LITE,  SO
AS  TO  ENABLE  ADEQUATE  REPRESENTATION  FROM  THE  COMMENCEMENT OF THE
PROCEEDING.  APPLICATIONS FOR THE AWARD OF FEES AND EXPENSES MAY BE MADE
AT ANY TIME OR TIMES PRIOR TO FINAL JUDGMENT. BOTH PARTIES TO THE ACTION
OR PROCEEDING AND THEIR RESPECTIVE ATTORNEYS, SHALL  FILE  AN  AFFIDAVIT
WITH  THE COURT DETAILING THE FINANCIAL AGREEMENT, BETWEEN THE PARTY AND
THE ATTORNEY. SUCH AFFIDAVIT SHALL INCLUDE THE AMOUNT OF  ANY  RETAINER,
THE  AMOUNTS  PAID AND STILL OWING THEREUNDER, THE HOURLY AMOUNT CHARGED
BY THE ATTORNEY, THE AMOUNTS PAID, OR TO BE PAID, ANY EXPERTS,  AND  ANY
ADDITIONAL  COSTS,  DISBURSEMENTS  OR  EXPENSES.    Any applications for
[counsel] fees and expenses may be maintained by the attorney for either
spouse in counsel's own name in the same proceeding.  [Representation by
an attorney pursuant to paragraph (b) of subdivision nine of section one
hundred eleven-b of the social services law shall not preclude an  award
of  counsel  fees to an applicant which would otherwise be allowed under

A. 7569--A                          3

this section.] PAYMENT OF ANY RETAINER FEES  TO  THE  ATTORNEY  FOR  THE
PETITIONING  PARTY SHALL NOT PRECLUDE ANY AWARDS OF FEES AND EXPENSES TO
AN APPLICANT WHICH WOULD OTHERWISE BE ALLOWED UNDER THIS SECTION.
  S  2. Section 238 of the domestic relations law, as amended by chapter
529 of the laws of 1978, is amended to read as follows:
  S 238. Expenses in enforcement AND MODIFICATION proceedings.   In  any
action or proceeding to [compel the payment of any sum of money required
to  be  paid  by] ENFORCE OR MODIFY ANY PROVISION OF a judgment or order
entered in an action for divorce, separation, annulment  [or],  declara-
tion  of  nullity of a void marriage, DECLARATION OF VALIDITY OR NULLITY
OF A JUDGEMENT OF DIVORCE RENDERED AGAINST A SPOUSE WHO WAS THE  DEFEND-
ANT IN ANY ACTION OUTSIDE THE STATE OF NEW YORK AND DID NOT APPEAR THER-
EIN  WHERE  SUCH SPOUSE ASSERTS THE NULLITY OF SUCH FOREIGN JUDGMENT, OR
AN INJUNCTION RESTRAINING THE PROSECUTION IN ANY OTHER  JURISDICTION  OF
AN  ACTION  FOR  A DIVORCE, or in any proceeding pursuant to section two
hundred forty-three, two hundred forty-four, two hundred forty-five,  or
two  hundred  forty-six OF THIS ARTICLE, the court may in its discretion
require either party to pay [the expenses  of  the  other  in  bringing,
carrying  on,  or  defending such action or proceeding] COUNSEL FEES AND
FEES AND EXPENSES OF EXPERTS DIRECTLY TO THE ATTORNEY OF THE OTHER PARTY
TO ENABLE THE OTHER PARTY TO CARRY ON OR DEFEND THE ACTION OR PROCEEDING
AS, IN THE COURT'S DISCRETION, JUSTICE REQUIRES  HAVING  REGARD  TO  THE
CIRCUMSTANCES  OF THE CASE AND OF THE RESPECTIVE PARTIES. THERE SHALL BE
A REBUTTABLE PRESUMPTION THAT COUNSEL FEES SHALL BE AWARDED TO THE  LESS
MONIED SPOUSE. In any such action or proceeding, applications for [coun-
sel] fees and expenses may be maintained by the attorney for the respec-
tive  parties  in  counsel's  own  name and in counsel's own behalf.  IN
EXERCISING THE COURT'S DISCRETION, THE COURT SHALL SEEK TO  ASSURE  THAT
EACH  PARTY  SHALL  BE  ADEQUATELY  REPRESENTED  AND THAT WHERE FEES AND
EXPENSES ARE TO BE AWARDED, THEY SHALL BE AWARDED  ON  A  TIMELY  BASIS,
PENDENTE  LITE,  SO  AS  TO  ENABLE  ADEQUATE  REPRESENTATION  FROM  THE
COMMENCEMENT OF THE PROCEEDING.  APPLICATIONS FOR THE AWARD OF FEES  AND
EXPENSES  MAY BE MADE AT ANY TIME OR TIMES PRIOR TO FINAL JUDGMENT. BOTH
PARTIES TO THE ACTION OR PROCEEDING AND THEIR REPRESENTATIVE  ATTORNEYS,
SHALL FILE AN AFFIDAVIT WITH THE COURT DETAILING THE FINANCIAL AGREEMENT
BETWEEN  THE  PARTY  AND  THE ATTORNEY. SUCH AFFIDAVIT SHALL INCLUDE THE
AMOUNT OF ANY RETAINER, THE AMOUNTS PAID AND STILL OWING THEREUNDER, THE
HOURLY AMOUNT CHARGED BY THE ATTORNEY, THE AMOUNTS PAID, OR TO BE  PAID,
ANY  EXPERTS,  AND  ANY  ADDITIONAL  COSTS,  DISBURSEMENTS  OR EXPENSES.
PAYMENT OF ANY RETAINER FEES TO THE ATTORNEY FOR THE  PETITIONING  PARTY
SHALL NOT PRECLUDE ANY AWARDS OF FEES AND EXPENSES TO AN APPLICANT WHICH
WOULD OTHERWISE BE ALLOWED UNDER THIS SECTION.
  S 3. This act shall take effect on the one hundred twentieth day after
it  shall  have  become a law and shall apply to actions and proceedings
commenced  on or after such effective date.

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Assembly Bill A7569

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