A common misconception in New Jersey family court is that winning a motion, trial, or appeal automatically entitles the successful party to reimbursement of counsel fees. Litigants often assume that if the judge agrees with their legal position, their former spouse will be ordered to pay the bill.

That assumption is usually wrong.

New Jersey family courts do not follow a simple “loser pays” system. A party may prevail on the merits and still be responsible for their own attorney’s fees. Conversely, a party may lose a motion or trial without having acted in bad faith. Understanding that distinction is critical in divorce, post-judgment litigation, and family law appeals.

The American Rule and the Goal of Leveling the Playing Field

The starting point is the “American Rule,” under which each party generally pays their own attorney’s fees unless a statute, court rule, agreement, or recognized exception permits fee shifting. In New Jersey family actions, counsel fees may be awarded, but they are not automatic.

Under N.J.S.A. 2A:34-23 and Rule 5:3-5(c), a judge must evaluate multiple factors before ordering one party to contribute to the other party’s fees. Those factors include the parties’ financial circumstances, their respective ability to pay, the reasonableness and good faith of the positions advanced, the extent of fees incurred, prior fee awards, amounts previously paid to counsel, the results obtained, whether fees were incurred to enforce orders or compel discovery, and any other factor bearing on fairness.

Indeed, Rule 5:3-5(c) allows a fee award to be paid by “any party,” including, where just, even a party who was successful in the action. That language underscores the central point: success alone is not dispositive.

The usual purpose is not to punish the losing party simply for being unsuccessful; it is to ensure fairness. In many family cases, counsel fees are awarded to “level the playing field” so that one spouse does not use superior financial resources to overwhelm the other. As recognized in Kelly v. Kelly, 262 N.J. Super. 303 (Ch. Div. 1992), fee awards often serve the purpose of allowing parties with unequal financial positions to litigate on more equal footing.

Where bad faith is proven, fee shifting may also protect the innocent party from unnecessary litigation costs caused by improper conduct. But financial need and ability to pay remain central. If both parties have the resources to pay their own lawyers, a fee award becomes harder to justify unless there is bad faith, enforcement-related conduct, discovery misconduct, or another fairness-based reason recognized under the rule.

Losing Is Not the Same as Bad Faith

When financial disparity is not the driving issue, the party seeking fees will often argue that the other side litigated in “bad faith.” This is where trial courts sometimes err.

New Jersey appellate courts have repeatedly made clear that losing a motion, pursuing an unsuccessful claim, or advancing a flawed legal theory does not automatically equal bad faith. In Ricci v. Ricci, 448 N.J. Super. 546 (App. Div. 2017), the Appellate Division stated plainly that New Jersey does not subscribe to a system in which the loser simply pays the winner’s legal fees.

The same principle appears in Slutsky v. Slutsky, 451 N.J. Super. 332 (App. Div. 2017), where the Appellate Division explained that advancing a reasonably supported legal position that the court ultimately rejects is not the same as bad faith.

The published Appellate Division decision in Steiner v. Steiner, 470 N.J. Super. 112 (App. Div. 2021), reinforces the point. There, the court held that bad faith does not arise merely because a matrimonial litigant loses at trial. It requires conduct beyond the bounds of proper advocacy, such as pursuing or defending a claim without factual support.

That distinction matters. A litigant has the right to bring a reasonably supported claim or defense without the fear that every unsuccessful argument will become a financial penalty.

What Actually Constitutes Bad Faith?

Bad faith is more than being wrong. It involves conduct that abuses the litigation process.

Examples may include:

• Intentionally misrepresenting facts or law.
• Asserting claims or defenses with no factual support.
• Using litigation to harass or oppress the other party.
• Willfully refusing to comply with discovery obligations.
• Forcing avoidable enforcement applications by violating clear court orders.
• Taking positions designed only to delay, burden, or increase costs.

By contrast, a party does not act in bad faith merely because the judge disagrees with their view of the evidence or rejects their legal argument. A misguided but reasonably supported position is not sanctionable simply because it fails.

Why Proper Judicial Findings Matter

A counsel-fee award cannot rest on a conclusory statement that one party “won” or that the other party acted unreasonably. The court must analyze the required factors and explain why a fee award is fair.

That analysis should include the parties’ financial circumstances, their ability to pay, the reasonableness and good faith of their positions, the fees incurred, any prior fee awards, and whether the fees were caused by enforcement issues, discovery problems, or other misconduct.

A fee award may be vulnerable on appeal when the trial court:

• Treats success on the merits as an automatic basis for fees.
• Fails to evaluate the Rule 5:3-5(c) factors.
• Makes unsupported findings of bad faith.
• Ignores the parties’ respective ability to pay.
• Awards fees punitively without tying the award to the Rule 5:3-5(c) factors, competent evidence, or specific misconduct.

For appellate purposes, the problem is often not merely the amount of the award. The problem is the absence of a legally sufficient explanation.

What This Means for You

Whether you prevailed or lost in the Family Part, counsel-fee demands must be evaluated through the correct legal lens.

Winning does not guarantee reimbursement. Prevailing on a motion, trial issue, or appeal does not automatically entitle you to recover your attorney’s fees. The court must still evaluate the required factors and determine whether fee shifting is fair.

Losing does not equal bad faith. You have the right to pursue a reasonably supported claim or defense without fear that simply being wrong will make you responsible for the other side’s entire legal bill.

Findings matter. A judge must do more than announce a result. The court must explain the factual and legal basis for awarding fees, especially when the award is based on alleged bad faith.

Appeal may be appropriate. If a trial court awards counsel fees without analyzing the required factors, relies on unsupported bad-faith findings, or effectively applies a “loser pays” approach, the award may be subject to appellate challenge.

Secure Experienced Appellate Counsel

Appealing a wrongful counsel-fee award requires a careful understanding of Rule 5:3-5(c), N.J.S.A. 2A:34-23, the American Rule, and the strict standards for proving bad faith.

If you are facing an unjust counsel-fee order, or if you are a trial attorney seeking an appellate partner to evaluate a fee award, our office can help. We identify whether the trial court applied the correct legal standard, made adequate findings, and grounded the award in competent evidence.

Contact our office to discuss whether a counsel-fee order in your case may be vulnerable on appeal.