MSG Berman Interview Part II

let's talk about another part of the bill the the council uh fee bill is intended to cure instances where parties have significantly have different economic resources in situation where uh situations where one party has significantly more assets or more income than the other the less moneyed spouse will now have access to funds for attorney fees first of all what does it mean to be the less moneyed spouse and does this legislation really cure its intended purpose okay let me answer the second question first um by telling you this the statute has always authorized a court to award councel fees to what we refer to as the less moneyed spouse the difference is because the courts were not following the Mandate we have this legislation and and I'll review it in a second with respect to um the first part of your question which deals with what is the less moneyed spouse um we're going to have to find that out we presume that they meant the less moneyed spouse was the person who made less money I made $350,000 a year and you made next to nothing but we know that I could make $350,000 a year we could have $500,000 of assets and your father could have given you $3 billion in which case you'd be the more money spouse I'd be the less moneyed spouse it's going to depend on the finances of every case but if you look at the bill you need to read the most important part which is there shall be a rebuttable presumption that Council fees shall be awarded to the less moneyed spouse the aim is to assure that I either party or each party shall be adequately represented and that where fees and expens are to be awarded they be awarded on a timely basis so as to enable adequate representation from the commencement of the proceeding and the applications can be made at any time in the can be more than one application made um it's a clear signal to the courts because this is not to council this is a this is a direction to the trial courts that we do not want you saying wait a minute we'll deal with Council fees at the end of the case which means that the less moneyed spouse would have a lot of trouble getting a good competent lawyer unless they had a lawyer who had so much money he or she didn't care about getting paid till the end of the case there aren't a lot of us out there today who could be like that and it's a direction to the courts to say make sure that less money people have the wherewithal assuming that their spouse has the money to fight on an even plane it's from my point of view the most ameliorating of all of the bills after we talk about no fault when they wrote this statute do you think that their intention was to really clarify the fact that a couple getting divorced should be Tre treated as an economic partnership I'm hesitating because um that may be by indirection um I think that's not really where they were at that point when they did this bill I think what they did within this bill was was to make an announcement which goes as follows if there is money in the case the fact that I control it it's in my name or it's in a joint account which requires both of us to agree should not disadvantage my spouse who does not have money in her name or in his name or we have no joint money that we can agree on um it's really a leveling of the playing field let's talk about a traditional case traditional case Westchester County I keep my money in my name I don't put it in joint names I make all of the money and your home taking care of the children and now you wanted divorce and you go to see a lawyer and the lawyer gives you a wonderful consultation explains the law to you and then says and by the way I charge X an hour and I take a 10 or 15 or $20,000 retainer which is refundable but I expect to get my money up front and you turn to that lawyer and you say wait a minute my husband makes a million dollars a year he's got lots of money in the bank in his name he's Frozen the joint accounts and I have nothing prior to this bill the average lawyer would have to look long and hard and decide whether he or she wanted to take the case now certainly they can call up the other attorney and say come on you ought to pay my fee I'm going to get it in the courthouse anyway they could make an application to the court but the courts were not granting these applications with the frequency and in the amount that the legislature has basically now said they should be doing which is why there is a certain heart of leveling the playing field um and calling it a partnership but let me talk about partnership for a second um because you're really talking about the equital distribution law which we've had for 30 years in our State title to an asset is not determinative of whether it's part of the marital pot it's whether it was acquired during the marriage prior to 1980 if an asset were in my name it didn't matter when I acquired it it was mine and you had no rights to it and Echo distribution changed that um and this is just a clear a following up and a clearing up look we have judges who get these cases in front of them they are caught between you'll forgive the expression a rock in a hard place if they feed too much in Council fees they believe it will only feed the litigation if they don't provide counsil fees then the dependent spouse doesn't have his or her champion and so they've tried to balance it and frankly the legislature has said you haven't done such a great job of balancing we need you to be more aware of the needs of dependent spouses will the court require an accounting of how legal fees are incurred or is it basically an application and the application e is either granted or it's not granted how does that supposed to work well the court that's a very good question the court can require an accounting first of all when you ask a court for Council fees you don't just say I want counsil fees because I want counsil fees you say I want counsil fees because I've just been hired my client has told me the following issues exist in this case and these are the things that I will have to do on his or her behalf um I may not have to answer a complaint because grounds are not an issue but there may be custodial issues involved there there certainly are going to be Financial issues involved we have to identify the assets we have to classify them we have to evaluate them and we know from the tax return that we have which is all we have that there are lots and lots of different assets because we looked at schedule B and we saw all this interest income that this gentleman or this lady has and all the dividend income he or she is having and we need to investigate where that comes from it's based upon that and I estimate it will take me so many hours to do this it's based upon that that a court will make an award um I think when you go back for a second award a Court's going to expect you to explain what you did and what is left to be done but Henry what you just described it was my understanding that's what the process was even before this legislation wasn't it well the law authorized the court to do everything it now makes them do I want to go back to the most important words in this bill the statute contains incredibly important words I said it before let me say it again there shall be a rebuttable presumption that Council fees shall be awarded that's a very different statement or language than the court is authorized to make an award of counsel fees a presumption means we expect you to do it ABS in unusual circumstances it's the thing to do it's the requirement here give you one other statement if you read the sponsors memo all of our bills have a bill and the memo for the sponsor and after saying it creates a rebuttable presumption of counsil fees to the non-money spouse as well as expert fees that's an important thing to keep in mind when we apply for counsil fees we also can apply for expert fees for the experts who value the assets of this marriage the memo says the current law places the onus on the party seeking counsel fees to show why the interest of Justice requireing Award of fees and judges appear to be reluctant to award fees under the current statute because an award fees is vital to prevent an imbalance in resources we need a presumption of an award of fee and that's the difference this is simply saying we try to tell you this in a couple of amendments over the years courts but we must have you awarding Council fees now you just uh mentioned expert fees does this section address expert fees any differently than how expert fees whether it be for you know child or forensic accounting or anything else is it going to be treated now differently than in the past okay probably but now we got to do a little history okay um before you could get counsil fees in the past we used to have what's called an aarn affidavit you'd get an affidavit from a forensic accountant explaining what the business that he or she was going to evaluate and what he or she thought it would cost and you submitted that with your application for expert fees and Council fees when we got to preliminary conferences Direction seemed to change and we go in onment conference and the court says so what do you got in this case and we say well we have a medical practice to evaluate and the court says okay I'm going to appoint this person or that person so there's been a shift away from the time consuming aharn affidavits into a recognition by the courts that when you can identify that there's something that they know has to be evaluated a medical practice a law practice a a business the enhanced earning capacity people acquire during the marriage the courts are much more readily appointing experts as a matter of course and so what do you need for Council fees who we're going to pick uh the courts May pick the expert they want on their own or they may ask for a list from the attorneys to see if they can agree on something um and may very well fix the amount of money to go but the courts I believe have been actually much more willing to award expert fees than Council fees over the last number of years do you think it's because they want to move the case along and they think that maybe by appointing the neutral it's easier and quicker they certainly know that you can't settle a case without an evaluation you know before we go to the next topic let me just ask you one other question in reference to council fees since I'm I'm sure our audience is particularly interested in this part of the legislation is there anything in the legislation to address when one or more of the parties changes Council well there is nothing in the legislation but remember the courts still have discretion and the courts are I don't believe and I've said this before I don't believe this bill is a is a blank check to anybody I believe it authorizes a court to assist a non-money spouse or a less moneyed spouse in defense or in the prosecution of an action for divorce but I believe when you see people changing lawyers multiple times and making multiple applications through different Council for legal fees I think the courts are going to not be as willing to make an award at that time as they would have been to the first or maybe the second lawyer um so the the people who go through four five six lawyers I don't think are going to be helped by this they better have their own monies let's talk about the temporary maintenance guideline bill this bill I believe was to allow for a speedy resolution of maintenance issues what are its strengths what are its weaknesses and what are your general comments about this this part of the legislation let's start with I don't think it has any strengths um I think that if before you can talk about the the temporary maintenance bill you have to understand the history of what went on in the legislature because the temporary maintenance bill was not what was going to be proposed and passed maintenance in this state is discretionary with the court based upon a number of factors in the statute both temporary and post divorce maintenance it's primarily been based upon needs and standard of living there are lots of other factors which go into it but certainly certainly on a motion for temporary maintenance at the beginning of the case the concept was how do we keep the status quo how do we keep these people so that they're not in foreclosure so that there's food on the table so that there's clothing on their backs while we sort out the of what assets exist what income is really being earned and what's the ultimate resolution