Posted on July 10, 2024

Attorney’s Fees In An Illinois Parentage Case

In a divorce, each party’s money is also the other party’s money. So, Illinois divorce courts will liberally order one party to pay the other party’s attorney’s fees during the course of an Illinois divorce.

In a parentage action, where the parties have a child or children together but have never been married, each party’s money is their own money.

Additionally, the statutes that govern attorney’s fees in an Illinois divorce are all contained in the Illinois Marriage and Dissolution of Marriage Act. If the parties aren’t married, they should not be relying on the the “Marriage Act.”

Instead, unmarried couples must use the “Illinois Parentage Act of 2015” to determine their rights in court.

The Illinois Parentage Act allows for one party to pay the other party’s attorney’s fees (and many other fees).

“The court may assess filing fees, reasonable attorney’s fees, fees for genetic testing, other costs, necessary travel expenses, and other reasonable expenses incurred in a proceeding under this Act. The court may award attorney’s fees, which may be paid directly to the attorney, who may enforce the order in the attorney’s own name.” 750 ILCS 46/802

A parentage court is directed to use the exact same factors as the attorney fee section of the Illinois Marriage and Dissolution of Marriage Act.

“Any party may be represented by counsel at all proceedings under this Act. Except as otherwise provided in this Act, the court may order, in accordance with the relevant factors specified in Section 508 of the Illinois Marriage and Dissolution of Marriage Act, reasonable fees of counsel, experts, and other costs of the action, pre-trial proceedings, post-judgment proceedings to enforce or modify the judgment, and the appeal or the defense of an appeal of the judgment to be paid by the parties.” 750 ILCS 46/809(emphasis mine)

There are no explicit “relevant factors” listed in Section 508 of the Illinois Marriage Act but it can be presumed that the standard for awarding attorney’s fees is the same for Illinois parentage courts as it would be for Illinois divorce courts: “the financial resources of the parties.”

“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)

The Illinois Parentage Act of 2015 buttresses this leaning on 750 ILCS 5/508(a) by specifically referencing 750 ILCS 5/508(a) in the “Temporary Orders” clause.

“A temporary order may include provisions for the allocation of parental responsibilities and parenting time as provided by the Illinois Marriage and Dissolution of Marriage Act. A temporary order may, in accordance with the provisions of subsection (a) of Section 508 of the Illinois Marriage and Dissolution of Marriage Act that relate to proceedings other than pre-judgment dissolution proceedings, include an award for interim attorney’s fees and costs.” 750 ILCS 46/501

Case law agrees that the statutes governing attorney’s fees for parentage courts and divorce courts are, effectively, the same.

“[I]n a parentage action, the court may order reasonable fees of counsel and costs to be paid by the parties ‘in accordance with the relevant factors specified in Section 508 of the Illinois Marriage and Dissolution of Marriage Act.’ Accordingly, both sections are essentially the same for our purposes here.” IN RE PARENTAGE OF JW, 2017 IL App (2d) 160554 – Ill: Appellate Court, 2nd Dist. 2017

Case law also says the purposes of the two statutes are the same.

“[T]he Parentage Act authorizes judgments concerning issues that regularly arise in Marriage Act proceedings — custody, child support, guardianship, visitation. Providing interim attorney’s fees in Parentage Act and Marriage Act cases well might produce similar public policy benefits that would not have escaped the legislature’s attention: avoiding long delays, discouraging the use of superior assets as a litigation tool, encouraging attorneys to undertake parentage actions, and reducing the risk of simply outlasting the disadvantaged party.” In re Stella, 818 NE 2d 824 – Ill: Appellate Court, 1st Dist., 2nd Div. 2004 (citations omitted)

Despite the fact that unmarried couples’ assets cannot be divided by a parentage court, a parentage court can still consider either party’s assets when making an attorney fee award.

Parentage courts should consider “contribution to attorney fees and costs pursuant to sections 508(a) and 503(j) of the Marriage Act” IN RE PARENTAGE OF JW, 2017 IL App (2d) 160554 – Ill: Appellate Court, 2nd Dist. 2017

“Any award of contribution to one party from the other party shall be based on the criteria for division of marital property under this Section 503” 750 ILCS 5/503(j)

Most of the criteria in 750 ILCS 5/503 is specifically about dividing assets but many of the criteria could be a basis for awarding attorney fees in an Illinois parentage case.

“(5) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having the primary residence of the children;(6) any obligations and rights arising from a prior marriage of either party;…8) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;(9) the custodial provisions for any children;…. 11) the reasonable opportunity of each spouse for future acquisition of capital assets and income” 750 ILCS 5/503(d)

Illinois parentage courts should make these determinations based on evidence presented. Nowhere in the Illinois parentage act is the Illinois Marriage and Dissolution of Marriage Act’s temporary relief clause cited which allows for summary hearings based on financial affidavits alone.

“Except for good cause shown, a proceeding for (or relating to) interim attorney’s fees and costs in a pre-judgment dissolution proceeding shall be nonevidentiary and summary in nature.” 750 ILCS 5/501(c-1)

Without this summary process, the parties’ “financial resources” must be proven by formal evidence (which, in fairness, can be just the formal submission of financial affidavits)

If a party is not following the court’s orders, attorney’s fees must be awarded via 750 ILCS 5/508(b)

“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.” 750 ILCS 5/508(b)(emphasis added)

If attorney’s fees are not awarded from one parent to the other parent, the other parent still owes their own attorney money…and their own attorney can sue them for it.

The always referred to 750 ILCS 5/508(a) allows a lawyer to sue their own client for fees.

“The court…may order any party to pay a reasonable amount for his…attorney’s fees.” 750 ILCS 5/508(a)

A court will order a parentage court litigant to pay their own attorney based on what is fair and what was contracted for.

“Any amount awarded by the court must be found to be fair compensation for the services, pursuant to the contract, that the court finds were reasonable and necessary.” 750 ILCS 5/508(c)

Going to court is expensive whether you are married or not. But, nothing is more expensive than a cheap lawyer. Contact my Chicago, Illinois family law office today to speak with an experienced Illinois divorce attorney.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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