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This entry was published on 2014-09-22
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Expenses in enforcement and modification proceedings
Domestic Relations (DOM) CHAPTER 14, ARTICLE 13
§ 238. Expenses in enforcement and modification proceedings. In any
action or proceeding to enforce or modify any provision of a judgment or
order entered in an action for divorce, separation, annulment,
declaration of nullity of a void marriage, declaration of validity or
nullity of a judgement 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 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 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 fees and
expenses may be maintained by the attorney for the respective 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.