There are two ways that your spouse can be responsible for your attorney’s fees: 1) the interim attorney’s fees (those fees that are owed to an attorney during the divorce) and 2) Final attorney’s fees (those fees which are owed at the end of a divorce).
“interim attorney’s fees and costs” means attorney’s fees and costs assessed from time to time while a case is pending, in favor of the petitioning party’s current counsel, for reasonable fees and costs either already incurred or to be incurred, and “interim award” means an award of interim attorney’s fees and costs. – 750 ILCS 501(c-1)(1)
To determine if your spouse should be responsible for paying those attorney’s fees you must file a petition for interim attorneys fees where the court will take the following factors into consideration:
- the income and property of each party, including alleged marital property within the sole control of one party and alleged non-marital property within access to a party;
- The needs of each party;
- The realistic earning capacity of each party;
- Any impairment to present earning capacity of either party, including age and physical and emotional health;
- The standard of living established during the marriage;
- The degree of complexity of the issues, including allocation of parental responsibility, valuation or division (or both) of closely held businesses, and tax planning, as well as reasonable needs for expert investigations or expert witnesses, or both;
- Each party’s access to relevant information;
- The amound of the payment or payments made or reasonably expected to be made to the attorney for the other party;
- Any other factor that the court finds to be just and equitable; – 750 ILCS 501(c-1)(1)(A-I)
As you can see these factors are really broad and in practice the judge will often say, “How much did the husband pay his attorney and how much did the wife pay her attorney?” The judge will then equalize the amounts. So, if the husband paid his attorney $ 10,000 and the wife paid her attorney $ 1,500, the judge would order the husband to pay the wife’s attorney $ 8,500.
Other judges however have told me that they only they only award interim attorney’s fees to “level the playing field” which was the title of the amendments to the Marriage and Dissolution Act which allowed petitions for interim fees. This vague ruling seems to imply that once you have access to an attorney, that’s enough, and the attorneys can collect the balances of their fees at the end of the divorce (presumably from the marital estate).
Often parties have litigated the case beyond what they can afford and then demand the other party for their litigation. At this point the statute allows the court to declare that neither party can afford the attorney’s fees and costs and, therefore, the party with the interim fee petition can tap into the other party’s attorney’s retainer.
“In any proceeding under this subsection (c–1), the court (or hearing officer) shall assess an interim award against an opposing party in an amount necessary to enable the petitioning party to participate adequately in the litigation, upon findings that the party from whom attorney’s fees and costs are sought has the financial ability to pay reasonable amounts and that the party seeking attorney’s fees and costs lacks sufficient access to assets or income to pay reasonable amounts. In determining an award, the court shall consider whether adequate participation in the litigation requires expenditure of more fees and costs for a party that is not in control of assets or relevant information. Except for good cause shown, an interim award shall not be less than payments made or reasonably expected to be made to the counsel for the other party. If the court finds that both parties lack financial ability or access to assets or income for reasonable attorney’s fees and costs, the court (or hearing officer) shall enter an order that allocates available funds for each party’s counsel, including retainers or interim payments, or both, previously paid, in a manner that achieves substantial parity between the parties.” 750 ILCS 5/501(c–1)(3)
In reality, the retainer of the other party is almost always exhausted (used up) by the time the petition for interim fees goes to hearing. In Re Marriage of Goesel, 2017 IL 122046 has recently decided that you can’t force an attorney to give back money (called “disgorgement of fees”) that he or she has actually earned.
So, it’s best to file a petition for interim fees as soon as possible if you believe you can tap into the opposing counsel’s retainer. I, personally, have never seen it done successfully. In my experience, interim fee petitions are always based on one spouse having control of the marital money.
If your spouse has violated a court order and is held in contempt, he is obligated to pay your attorney’s fees incurred in pursuing compliance with that order.
“In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without compelling cause or justification, the court shall order the party against whom the proceeding is brought to pay promptly the costs and reasonable attorney’s fees of the prevailing party. If non-compliance is with respect to a discovery order, the non-compliance is presumptively without compelling cause or justification, and the presumption may only be rebutted by clear and convincing evidence. If at any time a court finds that a hearing under this Act was precipitated or conducted for any improper purpose, the court shall allocate fees and costs of all parties for the hearing to the party or counsel found to have acted improperly. Improper purposes include, but are not limited to, harassment, unnecessary delay, or other acts needlessly increasing the cost of litigation.” – 750 ILCS 508(b).
If you are already divorced and you’re pursuing some action post-judgment your right to pursue your spouse for attorney’s fees still exists on the same basis per 750 ILCS 508(a-5)
At the end of the divorce proceedings, debts owed to attorneys are treated as marital debts and are divided between the parties as any other debt or asset would be.
If you find yourself owing your own attorney fees at the end of your case, your attorney can file a petition against you directly at the end of the proceedings. At the conclusion of this petition, your attorney will have an order for his or her fees owed which is enforceable in domestic relations and collections courts.