Getting a Litigation Fund to Level the Playing Field in a Divorce. It is possible.

By: Sylwia L’Esperance, Paralegal

“My spouse makes all the money and I can’t afford a lawyer” is a statement we hear quite often from the dependent spouse. Too many spouses feel trapped in a marriage thinking their hands are tied due to the inability to pay for a divorce. They often decide to represent themselves believing there are no other options and think they cannot possibly hire an attorney. Usually, this is a fallacy and a bad mistake.

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Generally, in New Jersey, parties to a divorce action hire independent counsel by paying a retainer which is a sum of money your attorney will request that you pay in advance. The initial retainer amount will depend on the complexity of issues and the scope of representation. Your attorney will charge you hourly for services rendered against the retainer and likely issue a bill monthly itemizing all legal tasks performed on your case and the amount of time spent on each task.

So how do you fund a retainer when your spouse is the breadwinner and you do not have access to any joint accounts, savings, or credit cards? What you may not be aware of is that the Court may establish a litigation fund or compel your spouse to pay a retainer for you, in order to level the playing field to give both spouses the opportunity to have adequate legal representation.

At Hill Wallack, we have been successful at securing litigation funds for our clients which is typically accomplished by filing a motion, if the other spouse refuses to do so voluntarily. If an agreement can be reached voluntarily, we memorialize the agreement to determine whether or if a credit will be due to the other party at the end of the divorce. If the parties cannot reach agreement, then the motion will have to be filed along with the necessary court filing fee.

To prevail on a motion seeking to establish a litigation fund, the requesting spouse must file a Case Information Statement to outline the parties’ financial situation, at least from their vantage point. The Court will consider, among other things, the parties’ respective financial circumstances, their incomes, ability to pay, as well as whether they are acting in good faith or bad faith. Bad faith may be found if, for example, a party purposefully blocks the other party’s access to marital funds or dissipates them on non-marital purposes.

If you are contemplating divorce but are hesitant to contact an attorney because you think you cannot afford one, schedule a call with our office to talk about your options at (732) 852-7550. During the pandemic, our attorneys are available through Zoom or other video conferencing platforms.


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