Posted on February 19, 2023

Can A Pro Se Litigant Ask For Attorney’s Fees In An Illinois Divorce?

Lawyers are expensive. Good lawyers are REALLY expensive. As the old saying goes, “you get what you pay for.”

In an Illinois divorce, there are a variety of ways a divorce litigant can ask the other side to pay for their attorney’s fees.

“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)

Attorney’s fees can be awarded during the divorce proceedings based on who has the available financial resources.  

“[I]nterim attorney’s fees and costs” means attorney’s fees and costs, including an allowance from the other party for a retainer fee to obtain an attorney, 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, including an allowance from the other party for a retainer fee to obtain an attorney.” 750 ILCS 5/501(c-1)

Attorney’s fees can be awarded after the divorce proceedings based on who was awarded specific marital assets.

“After proofs have closed in the final hearing on all other issues between the parties (or in conjunction with the final hearing, if all parties so stipulate) and before judgment is entered, a party’s petition for contribution to fees and costs incurred in the proceeding shall be heard and decided” 750 ILCS 5/503(j)

All of these attorney fee awards are paid to the attorney NOT the litigant requesting the fees.

“The court may order that the award of attorney’s fees and costs (including an interim or contribution award) shall be paid directly to the attorney, who may enforce the order in his or her name” 750 ILCS 5/508(a)

When a divorce litigant does not have an attorney, can that pro se litigant ask for attorney’s fees?

When people represent themselves in an Illinois divorce court, they are held to the same standard as if they were an attorney.

“A pro se litigant…is not entitled to more lenient treatment than attorneys. In Illinois, parties choosing to represent themselves without a lawyer must comply with the same rules and are held to the same standards as licensed attorneys.” Holzrichter v. Yorath, 369 Ill. Dec. 659, 674 (Ill. App. Ct. 2013)

Pro se litigants will be treated as lawyers in an Illinois divorce court. The one thing a pro se litigant cannot do is ask for attorney’s fees (even if, they, themselves are an attorney).

A “plaintiff’s status as an attorney proceeding pro se precludes him from recovering attorney fees.” Hamer v. Lentz, 547 NE 2d 191 – Ill: Supreme Court 1989

The Illinois Supreme Court explained that there are three reasons why Illinois courts will not award attorney’s fees to pro se litigants. “First, the award of fees is intended to relieve plaintiffs of the burden of legal costs; it is not intended as either a reward for plaintiffs or a penalty against the [defendant]. Since a pro se lawyer incurs no legal costs, the intent of the fee provision would not be served by granting fees to pro se lawyers. Second, the fee provision encourages plaintiffs to seek out legal advice in order to prevent unwarranted litigation. Although a pro se lawyer may have the requisite legal skills, he or she may lack the objectivity necessary to meet the aims of the statute. Third, the fee provision might be used by lawyers with an inactive practice solely to generate fees.” Hamer v. Lentz, 547 NE 2d 191 – Ill: Supreme Court 1989 (citing Aronson v. US Dept. of Housing and Urban Dev., 866 F. 2d 1 – Court of Appeals, 1st Circuit 1989)

The bar against attorney’s fees for the self-represented has been held for Illinois divorce cases and their generous attorney’s fees statutes.

“Lawyers representing themselves simply do not incur legal fees. Thus, attorneys who represent themselves in an action are not entitled to recover their own attorney fees.” In re Marriage of Tantiwongse, 863 NE 2d 1188 – Ill: Appellate Court, 3rd Dist. 2007

The exception to the rule that a lawyer cannot ask to have his own fees paid is if the pro se lawyer is defending against frivolous litigation.

“To hold that an attorney cannot recover reasonable attorney fees in defending himself against frivolous litigation would clearly frustrate the purpose of Rule 137 and unfairly reward those who persist in maintaining frivolous litigation.” McCarthy v. Taylor, 155 NE 3d 359 – Ill: Supreme Court 2019

It is really tough for pro se litigants in an Illinois divorce court. You have to pay for your attorney. Unlike criminal courts, there is no right to a lawyer in an Illinois divorce court. “[N]either the United States Constitution nor the Illinois Constitution provide [a divorce litigant] with a right to counsel[.]” In re Marriage of Schmidt, 241 Ill. App. 3d 47, 49 (1993)

If you are struggling as a pro se litigant, please be advised that Abraham Lincoln once remarked that “a man who represents himself has a fool for a client.” I have taken over many a pro se divorce case to gracious relief of the judge overseeing the case. In lieu of that, I have provided consulting to the adamant pro se litigant to help them get the best possible result under their own representation. If you’d like to discuss getting my help, contact my Chicago, Ilinois family law firm 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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