Having an adult disabled child is difficult. Having to drag your child’s parent into court to support that adult disabled child makes it even worse.
Caring for an adult child surely reduces the earning capacity of the care-giving parent which makes expensive litigation all the more burdensome without a request for attorney’s fees.
Can you ask your child’s other parent for attorney’s fees as well as support for an adult disabled child in an Illinois divorce or parentage action?
Supporting An Adult Disabled Child In Illinois
Parents of disabled children owe their disabled child support well into adulthood.
“The court may award sums of money out of the property and income of either or both parties or the estate of a deceased parent, as equity may require, for the support of a child of the parties who has attained majority when the child is mentally or physically disabled and not otherwise emancipated.” 750 ILCS 5/513.5(a)
The Illinois statute provides few guidelines or restrictions as to how much support can be requested in order to support an adult disabled child.
“In making awards under this Section, or pursuant to a petition or motion to decrease, modify, or terminate any such award, the court shall consider all relevant factors that appear reasonable and necessary, including:(1) the present and future financial resources of both parties to meet their needs, including, but not limited to, savings for retirement;(2) the standard of living the child would have enjoyed had the marriage not been dissolved. The court may consider factors that are just and equitable;(3) the financial resources of the child; and(4) any financial or other resource provided to or for the child including, but not limited to, any Supplemental Security Income, any home-based support provided pursuant to the Home-Based Support Services Law for Mentally Disabled Adults, and any other State, federal, or local benefit available to the non-minor disabled child.” 750 ILCS 5/513.5(b)
Attorney’s Fees And The Support Of An Adult Disabled Child
750 ILCS 5/513.5 provides great latitude to require the parent with more money to support the adult child. 750 ILCS 5/513.5 is silent, however, as to whether the parent with more money should pay for the other parent’s attorney’s fees either during or after the litigation required to determine the support of an adult disabled child.
Typically, parties are responsible for their own attorney’s fees.
“Illinois follows the ‘American Rule,’ which provides that absent statutory authority or a contractual agreement, each party must bear its own attorney fees and costs.” McNiff v. Mazda Motor of America, Inc., 384 Ill. App. 3d 401, 404 (2008).
This common law rule against awarding attorney’s fees means there must a clear statute in order for an Illinois court to shift attorney fees from one party to another.
“Statutes permitting the recovery of attorney fees are thus in derogation of the common law and must be strictly construed.” Lopez v. Rendered Servs., Inc., 2019 IL App (1st) 181869, ¶ 16.
“ ‘A statute, to be construed strictly, should be confined to such subjects or applications as are obviously within its terms and purposes.’ ” Erlenbush v. Largent, 353 Ill. App. 3d 949, 952 (2004) (quoting Warner v. King, 267 Ill. 82, 86, 107 N.E. 837 (1915))
The Illinois statute governing the support of adult children contains no specific reference to attorney’s fees despite the broad authority it confers on a court to provide support to an adult disabled child.
“[E]xamining the language of section 5/513.5, we cannot conclude that it ‘obviously includes’ any provision allowing for fee-shifting or an award of attorney fees.” In re Estate of Brick, 2024 IL App (1st) 231279-U
Still, 750 ILCS 5/513.5 is part of the larger Illinois Marriage and Dissolution of Marriage Act which does provide for fee shifting.
“The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order any party to pay a reasonable amount for his own or the other party’s costs and attorney’s fees.” 750 ILCS 5/508(a)
“Section 508 governs attorney fees generally, including petitions for contribution of attorney fees and costs incurred in post-decree proceedings and initial dissolution proceedings.” Blum v. Koster, 235 Ill. 2d 21, 46 (2009).
750 ICS 5/508(a) allows for attorney fee awards for a variety of reasons.
“Awards may be made in connection with the following:(1) The maintenance or defense of any proceeding under this Act.(2) The enforcement or modification of any order or judgment under this Act.(3) The defense of an appeal of any order or judgment under this Act, including the defense of appeals of post-judgment orders.(3.1) The prosecution of any claim on appeal (if the prosecuting party has substantially prevailed).(4) The maintenance or defense of a petition brought under Section 2-1401 of the Code of Civil Procedure seeking relief from a final order or judgment under this Act. Fees incurred with respect to motions under Section 2-1401 of the Code of Civil Procedure may be granted only to the party who substantially prevails.(5) The costs and legal services of an attorney rendered in preparation of the commencement of the proceeding brought under this Act.(6) Ancillary litigation incident to, or reasonably connected with, a proceeding under this Act.(7) Costs and attorney’s fees incurred in an action under the Hague Convention on the Civil Aspects of International Child Abduction.” 750 ILCS 5/508(a)
Surely, a request for support of an adult disabled child would be “The maintenance or defense of any proceeding under this Act” or “The enforcement or modification of any order or judgment under this Act.”
If you are asking for one thing (support for an adult disabled child), you might as well ask for everything else you might be entitled to (attorney’s fees). To learn more about how to get everything you are entitled to, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.
