NJSBA Family Law Section

Ayesha, thank you for posting the App Div case on collecting fees in a family matter. The decision leaves as many questions as answers for a family law solo like myself who tries to collect on unpaid fees. What I got from the decision is – yes, file in family, not law division, but beware the family court may deny venue anyway; and don't even try to have an arbitration clause in your retainer agreement.

The lack of clarity and a concise methodology for collecting fees does a disservice to our bar and makes it difficult to represent clients without deep pockets. Quite often I have to decide whether to continue representation close to settlement when the retainer is empty. It breaks my heart to send a request for substitution of attorney often near a settlement but I have learned the hard way payment plans get cancelled and then I am left with a confusing and expensive and too-oft unsuccessful route to collect on promised fees.

Tom King

Thomas R. King, Esq

O: 973-750-8348 Fax: 888-576-8997
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My reading is that it says fee enforcement motions should be filed in the Law Division:

Subsection (a)(3) of Rule 4:3-1, "Divisions of Court; Commencement and Transfer of Actions," reiterates the parameters for actions cognizable in the Family Part set forth in Rule 5:1-2. Rule 4:3-1(a)(5) provides that "[a]ll actions in the Superior Court except those encompassed by subparagraphs (1), (2), (3), and (4) hereof shall be filed and heard in the Law Division or the Law Division, Special Civil Part." R. 4:3-1(a)(5). Subparagraphs (1) through (4) do not encompass actions to enforce RAs. Thus, the plain language of Rules 5:1-2 and 4:3-1 supports the conclusion that the Chancery Division, Family Part was not the proper forum to hear the firm's fee-related issues because the principal claims it asserted, i.e., contractual enforcement claims to collect unpaid legal fees, did not arise out of a family or family-type relationship, nor A-2551-18 25 were the firm's collection actions included in the case types listed in Rule 4:3- 1(a)(3) and (a)(4). 

...

Considering the revisions to the Rule and reading subparagraphs (a)(1) through (a)(5) in their entirety, we are persuaded the firm's applications, all of which were decided after September 1, 2018, should have been filed as complaints in the Law Division and heard in that part of the Superior Court.   

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Wesley Fenza, Esquire|FENZA LEGAL SERVICES

970 Haddon Avenue, #13, Collingswood, NJ 08108

Phone: 856-477-3756|Email: [email protected] 

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