What Constitutes “Bad Faith” to Justify an Award of Counsel Fees?
When a party makes an application to the court requesting certain relief, this application is usually the last available step taken only after reasonable attempts have been made to solve these issues in other ways beforehand. As such, most applicants feel that they are entitled to an award of counsel fees due to the other party’s unreasonable position that necessitated the filing of an application in the first place. After all, if it weren’t for your adversary’s “bad faith”, that applicant would not have had to file the application in the first place. However, obtaining an award of fees is never that simple and may be harder than you would first imagine.
In considering whether to award counsel fees in a family action, R. 5:3-5(c) provides that:
In determining the amount of the fee award, the court should consider, in addition to the information required to be submitted pursuant to R. 4:42-9, the following factors: (1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extend of the fees incurred by both partis; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award. PRESSLER & VERNIERO, Current N.J COURT RULES, (GANN).
The legislature has also provided that on counsel fee applications the Court shall consider, in addition to the financial circumstances of the parties, “the good faith or bad faith of either party.” N.J.S.A. 2A:34-23. Where a party has acted in bad faith, the parties’ financial circumstances are irrelevant in consideration of an award of counsel fees. See Kelly v. Kelly, 262 N.J. Super. 303 (Ch. Div. 1992). The Kelly Court defines bad faith as:
This definition requires that the action of the party against whom fees are sought must be such as to suggest an improper motive. It implies something more than a showing of a mistaken, unreasonable or frivolous position (although the degree of unreasonableness may be such as to permit an inference as to motive). It requires a party to have malicious motives, to be unfair, to desire to destroy the opposing party, to use the court system improperly to force a concession not other available, Id. at 308.
Therefore, it is important that the pleadings you submit not only assert that bad faith is present, but that you also prove that the alleged bad faith of the other party meets the definition under Kelly. In addition to proving bad faith under the above-stated circumstances, you must be approaching the Court with clean hands yourself, including but not limited to complying with all court orders yourself, or else you will find your application for an award of fees denied. Please contact us online or call our offices at 908-575-9777 to schedule an appointment with a skilled divorce lawyer in New Jersey. We will ensure your application is properly filed to give you the best opportunity to obtain an award of counsel fees.
At Lyons & Associates, P.C., we handle many cases where people get lawyer fees from their ex.
Written By: William P. Lemega, Esq.