Legal Memorandum: An Award of Attorney Fees in a Family Law Matter

Issue: Under New Jersey law, may attorney fees be awarded in a family law matter when one party shows bad faith?

An award of attorney fees may be made in a family action whenever an application is made to the court for enforcement of its orders.  See NJSA 2A:34-23; Williams v. Williams, 59 N.J. 229, 233, 281 A.2d 273 (1971).  Among the factors the court should take into account in deciding such an attorney fee application are "the financial circumstances of the parties, and the good or bad faith of either party."  See NJSA 2A:34-23.  In addition, the court should consider:

(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;  (4) the extent of the fees incurred by both parties;  (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.

R. 5:3-5(c).

Thus, when one party has repeatedly disobeyed prior court orders, requiring the other party to bring actions to enforce the orders, it is appropriate to require the resisting party to pay the moving party’s reasonable counsel fees, because of the bad faith of the resisting party.  See Williams, 59 N.J. at 233,