All clients involved in litigation need money to pay their counsel’s legal bills, which include the initial retainer fee, fees incurred during the pendency of the litigation, and often replenishing the retainer fee. A client obtaining a divorce, however, has a unique problem in that they are precluded from dissipating marital assets — i.e., using marital assets for their own use when the marriage is coming to an end and with the intent of depriving the other spouse of his or her fair share of the marital estate. Although the payment of reasonable counsel fees is not a violation of the automatic financial restraining order under Rule 411, even in the absence of a motion for counsel fees pendente lite, using joint marital assets to pay one party’s counsel’s fees reduces the total amount of the marital estate, thereby depriving the other spouse of their fair share of equitable distribution of all marital assets at the conclusion of the case.
To avoid this problem, a practical attorney should agree to an advance of marital assets, under M.G.L. c. 208, § 34, to use for one or both of their respective counsel’s legal fees. This solution eliminates a contested motion under which a party asks the court to award a disbursement of marital assets to cover the attorney’s fees. Such a contested motion for counsel fees pendente lite is costly because of the need to draft a response and to appear in court. Moreover, they are unnecessary if counsel and parties simply agree upon this necessary expenditure.