What Should My Divorce Lawyer Submit To The Court So I May Obtain Counsel Fees?
After years of practicing divorce law here in New Jersey, I have had countless client’s ask me if we would be able to obtain a court order that would compel their spouse to pay (or contribute) towards their counsel fees.
A family court judge must consider numerous factors when making this decision. These include, but are not limited to, the financial circumstances of each spouse, an individual’s ability to pay their attorney’s fee, has a litigant acted in “good faith” in the eyes of the Court
As an attorney who only handles divorce cases, I am also aware that a Certification of Attorney Services must be submitted to the court. Otherwise, the court is precluded from even considering the issue of counsel fees. This is yet another reason that you only want an expert in the field of New Jersey divorce law to represent you, as a lawyer who is a “jack of all trades” is less likely to include this vital document when fighting for your counsel fees.
Following, please find a draft Certification of Attorney Services that my law firm uses when seeking counsel fees on behalf of our clients. If you have any further questions, please give my office a call. Thank you.
LAW OFFICES OF EDWARD R. WEINSTEIN, LLC
Weinstein Professional Building
214 Highway 18 North, Suite 2A
East Brunswick, New Jersey 08816
Attorneys for Defendant, David Jones
SUPERIOR COURT OF NEW JERSEY
CHANCERY DIVISION – FAMILY PART
DOCKET NO.: FM-12-
CERTIFICATION OF ATTORNEY
SERVICES IN SUPPORT OF DEFENDANT’S APPLICATION FOR COUNSEL FEES
I, Edward R. Weinstein, Esq., of full age, hereby certify and state as follows:
1. I am an attorney at law of the State of New Jersey with the Law Offices of Edward R. Weinstein, LLC. I am handling the above captioned matter on behalf of the Defendant, David Jones.
2. I am the Managing Partner with the Law Offices of Edward R. Weinstein, LLC. I was admitted to practice law in the state of New Jersey in 1995. I am a 1991 graduate of Seton Hall University, where I received a Bachelor’s Degree. I received my Juris Doctor from the New York Law School in 1995. I have been practicing law for twenty (20) years and my primary area of practice is divorce family law. I am a member of the Supreme Court of the United States, the United States District Court of New Jersey, New Jersey State Bar, Middlesex County Bar Association, the Middlesex County Assignment Judges Family Lawyers Committee, a member of the Middlesex County Early Settlement Program, former Chair of the New Jersey State Ethics Commission and the American Bar Association.
3. My present hourly rate is $400.00 per hour. This is the rate billed to the Defendant for legal work performed by me on his matter. The time spent was necessary and reasonable.
4. I make this certification for counsel fees pursuant to R. 4:42.
5. The fees charged meet the criteria of R.P.C. 1.5 for the following reasons:
a. All of the time and labor was required in the matter to properly perform my legal representation;
b. The fee charged is customarily charged in this locality for similar legal services performed by attorneys of similar qualifications;
c. The fee charged and the results sought and/or obtained relate to the time limitations imposed by the Courts and client as well as the circumstances;
d. I have been admitted to practice in the New Jersey State Courts since 1995. My practice possesses a concentration in family law and I am fully familiar with the practice of same.
6. I submit this Certification of Services in support of Defendant’s request for counsel fees in this matter, pursuant to R. 5:3-5(c), which provides that the Court should consider the following factors when making such an award.
(a) Financial circumstances of the parties.
The Plaintiff and Defendant both have an income for themselves. The Plaintiff earns approximately $60,000 from her employment and she has undisclosed income from a rental property in Brooklyn, New York, which can potentially earn her anywhere from an additional $4,500 to $7,500 per month. The Defendant earns approximately $116,000 per year and had moved out of the marital residence and must pay rent for himself while contributing to the expenses associated with the marital home. The Defendant is struggling financially and is forced to incur legal fees because of the Plaintiff’s failure to abide by their agreement as to the payment of the marital expenses, her failure to be reasonable in the matter and her refusal to even attempt to discuss the matter prior to filing an Order to Show Cause and then Notice of Motion for Pendente Lite Support;
(b) The ability of the parties to pay their own fees or to contribute to the fees of the other party.
The Defendant does not have extra money to pay any additional legal fees nor any legal fees of the Plaintiff. The Defendant should not be forced to pay counsel fees in this matter as the Plaintiff has failed to even attempt to discuss this matter prior to filing her unnecessary motion. The Defendant is earns a decent income and has unreported rental income and assets for which she can use to pay the Plaintiff’s counsel fees;
(c) The reasonableness and good faith of the positions advanced by the parties.
The Defendant has tried to discuss and resolve this matter with the Plaintiff prior to her unnecessarily and without notice seeking the court’s involvement. The Plaintiff refused to abide by the parties’ agreement and maintain the status quo that has existed and then had the nerve to file an overblown motion for pendente lite support once her OTSC was denied. The Defendant has been more than reasonable and is willing to maintain the status quo which existed during the marriage and for the past five (5) years. The Plaintiff filed an overblown Notice of Motion seeking seventeen (17) claims for relief along with a twenty-two (22) page Memorandum of Law and eighty-three (83) paragraph Certification. The Plaintiff is seeking various unnecessary and unreasonable relief at this time. The need for this motion is a direct result of the Plaintiff’s bad faith and she comes into this matter with unclean hands;
(d) Extent of fees incurred by parties:
The Defendant has incurred and is expected to incur over $9,000.00 in attorney fees in this action for this motion and the attempts to resolve same prior to the court’s involvement, as a direct result of the Plaintiff‘s failure to cooperate in this matter. The Plaintiff has incurred the outrageous amount of over $13,700.00 in counsel fees and the Complaint for divorce has only recently been filed. The Plaintiff has a legal bill of over $13,700 and her attorneys have spent over fifty-six (56) hours working on this matter and the only thing that has been done is a Complaint for Divorce and an Order to Show Cause, which was converted to a Notice of Motion after it was denied. The Plaintiff’s counsel’s billing records are so generic and jumbled that it is also almost impossible to decipher exactly how much time they have spent on each task. All of this time and money has been spent without even one (1) attempt to try and resolve this matter first and then refusing to negotiate or discuss a resolution to same when approached by the Defendant;
(e) Any fees previously awarded.
This is the first motion between the parties and there have been no prior court appearances and thus no fee have been previously awarded;
(f) The amount of the fees previously paid to counsel by each party.
I am unsure of the extent of the fees actually paid by the Plaintiff, however, her bill is a ridiculous $13,000. The Defendant has paid a retainer of $5,000.00 in connection with this matter. To date, Defendant has incurred actual and anticipated legal fees totaling approximately $$13,700.00 because of the Plaintiff’s bad faith a premature and unnecessary motion.
To date, my fees billed and the value of my fees representing the underlying application is as follows:
.7 Various telephone calls and emails to and from client to discuss his case, issues and how to proceed with matter, complaint for divorce and issue with wife and expenses
1.1 Receipt and review of correspondence from client with letter from adversary concerning OTSC, prepare correspondence in reply. Prepare correspondence to adversary addressing matter. Telephone call with adversary to discuss same. Receipt and review correspondence from adversary with Order. Prepare correspondence to adversary in reply.
1.3 Receipt and review of OTSC and supporting Certification from adversary. Prepare correspondence to client discussing same.
.6 Receipt and review of box of documents from adversary with OTSC, Complaint for Divorce, Notice of Motion and supporting documents.
5.6 Receipt and review of Notice of Motion for pendente lite support with 17 claims for relief, 83 paragraph Certification of Plaintiff in support of same, 22 page Letter Brief and proposed Order from adversary. Prepare Notice of Cross-Motion for various relief, proposed Order and Letter Brief in opposition to pendente lite support and in support of counsel fee award. Review case law and statutes in preparation of brief. Prepare correspondence to client with copy of same for review.
5.1 Prepare detailed Certification of client in response to Notice of Motion for Pendete Lite Support and addressing various paragraphs of Plaintiff's Certification. Review file, notes from client and documents in preparation of same. Prepare correspondence to client with same for review.
2.85 Finalize Certification of client to add additional paragraphs in reply to adversary's certification and paragraphs concerning Cross-Motion. Revise Notice of Cross-Motion and proposed Order to reflect additional items of relief. Review and revise Letter Brief to incorporate additional facts into same.
.75 Prepare Case Information Statement of client to reflect income, monthly expenses and assets. Review 2012 tax return and pay stubs of client in preparation of same.
.7 Prepare Certification of Attorney Services and analysis of factors.
1.5 Review Plaintiff’s Reply Certification and Letter Brief (anticipated)
2.5 Appearance at Court regarding oral argument for Motion and Cross-Motion (anticipated)
Filing Fee for Cross-Motion: $30.00 .
Total Time: 22.7 hours @ $400.00 = $9,080.00
(Includes anticipated time)
TOTAL FEES AND COSTS FOR NOTICE OF MOTION: $9,110.00
(includes anticipated fees)
(g) The results obtained.
The results of the pending Motion have yet to be determined, however, based upon the frivolousness of the Plaintiff’s application and the facts of this matter, it is highly likely that the Defendant will prevail in this matter.
(h) The degree to which fees were incurred to enforce existing orders or to compel discovery.
This motion was not related to the enforcement of an order or to compel discovery; and
(i) Any other factor bearing upon the fairness of an award.
Unfortunately, the Defendant was forced to incur almost $10,000 in legal fees since the Plaintiff failed to hold up her end of the agreement and pay for her share of the marital expenses that the parties have done for almost the past five (5) years. The Plaintiff filed an unnecessary, overblown and incomplete Motion for Pendente Lite Support without even trying to resolve the matter with the Defendant first. The Plaintiff must be held accountable for the Defendant’s counsel fees in conjunction with this matter.
7. In determining an allotment of counsel fees awarded pursuant to R. 5:3-5(c), the Court must also take into consideration the provisions of R. 4:42-9(b), (c), and (d). Said Court Rule requires an analysis of the factors presented in RPC 1.5(a), which are as follows:
(a) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
My background in law, I respectfully submit, allows for me to properly perform the legal services necessary to advance the best interests of my client.
(b) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
A great deal of time has been spent with the Defendant in discussing, analyzing and developing the facts relating to the sensitive and involved issues of the within application.
(c) The fee customarily charged in the locality for similar legal services.
My hourly rate is $400.00. This is the rate billed to Defendant. I consider this to be a fair hourly rate for the value of my services in this locale.
(d) The amount involved and the results obtained.
I incorporate herein everything heretofore stated in this Certification.
(e) The time limitations imposed by the client or by the circumstances.
This was a Cross-Motion and thus due by May 23, 2013, fifteen (15) days before the return date of the Plaintiff’s Notice of Motion.
(f) The nature and length of the professional relationship with the client.
This firm was first engaged by the Defendant in October of 2012 in connection with filing a complaint for divorce.
(g) The experience, reputation, and ability of the lawyer or lawyers performing the services.
I incorporate the statements heretofore made by me relevant to this point. I am the primary attorney handling this case. Notwithstanding this, it is possible that other attorneys in my firm may, from time to time, participate in my absence. They are:
8. Edward R. Weinstein, Esq.: Mr. Weinstein I am the Managing Partner with the Law Offices of Edward R. Weinstein, LLC. I was admitted to practice law in the state of New Jersey in 1995. I am a 1991 graduate of Seton Hall University, where I received a Bachelor’s Degree. I received my Juris Doctor from the New York Law School in 1995. I have been practicing law for twenty (20) years and my primary area of practice is divorce family law. I am a member of the Supreme Court of the United States, the United States District Court of New Jersey, New Jersey State Bar, Middlesex County Bar Association, the Middlesex County Assignment Judges Family Lawyers Committee, a member of the Middlesex County Early Settlement Program, former Chair of the New Jersey State Ethics Commission and the American Bar Association.
(h) Whether the fee is fixed or contingent.
The fees to be charged to the Defendant will be pursuant to the terms of our retainer agreement based upon each attorney’s hourly rate.
9. I respectfully submit that a fair and adequate award of counsel fees and costs be made on behalf of the Defendant pursuant to the requests in this Certification and the facts presented to the Court on the Defendant’s Cross-Motion.
10. All of the services and expenses rendered by me and incurred or paid by my client, and the services of my office support staff were necessary and reasonable and are in keeping with the current practices in and about the counties of Burlington, Essex, Hudson, Mercer, Middlesex, Monmouth, Morris, Ocean, Somerset and Union, New Jersey.
11. Therefore, I respectfully request that the Court enter an award of counsel fees and costs in favor of the Defendant, to be paid by the Plaintiff to the Law Offices of Edward R. Weinstein, LLC within ten (10) days, in the total amount of $9,080.00 which represents services thus far as well as anticipated services in preparing the within application.
I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are false, I am subject to punishment.