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Can My Spouse Pay My Attorney’s Fees in Chicago, Illinois?
“The law well settled that the attorney fees are the primary obligation of the party for whom the services are rendered.” In re Marriage of Stufflebeam, 283 Ill. App. 3d 923, 929 (1996) “Under Illinois law, each party pays his or her own attorney fees unless the party seeking fees is unable to pay and the other spouse has the ability to do so.” Berger v. Berger, 357 Ill. App. 3d 651, 662 (2005)
In Chicago, Illinois, 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
“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 amount 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).
Equalizing the playing field is not the rule. It’s just an easy “back of the envelope” solution. The real rule is that the parties must analyze their respective incomes and assets to determine who is responsible for whose attorney’s fees.
“In determining an award of attorney fees, the trial court considers the relative financial circumstances of the parties, including the allocation of assets and liabilities, maintenance, and the parties’ relative earning abilities. In re Marriage of Tworek, 2017 IL App (3d) 160188, ¶ 18. “[A] party seeking contribution must establish that he or she is unable to pay his or her attorney fees and that the other party is able to do so.” In re Marriage of Heroy, 2017 IL 120205, ¶ 30. “The statutory factors are the tools used by the court to decide whether a party is unable to pay and whether the other party is able to do so.” Id. “[A] party is unable to pay if, after consideration of all the relevant statutory factors, the court finds that requiring the party to pay the entirety of the fees would undermine his or her financial stability.” Id.
The responsibility for attorney’s fees are largely based on income. Just because you have assets does not mean you have to pay your own attorney’s fees. A party will not have to dip into their own assets to pay attorneys fees when “it is clear that [one party] will be unable to pay [their] attorney fees and costs without depleting part of the marital assets awarded to [them]…[while the other party] appears to be able to pay his fees as well as petitioner’s fees without depleting assets, based on [their] income.” In re Marriage of Haas, 215 Ill. App. 3d 959, 965 (Ill. App. Ct. 1991)
Attorney’s fees can be requested both before the divorce is finalized and after the divorce is complete (if there is more work to do). “Section 501(c–1) applies to both predissolution and postdissolution decree proceedings.” In re Marriage of Oleksy, 337 Ill. App. 3d 946, 950 (2003)
Attorney’s Fees Can Be Requested Any Time
While the Illinois statute provides for interim fee petitions, final fee petitions, and fee petitions based on contempt, the statute actually lets anyone request attorney’s fees from anyone at any time.
“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).
“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
The Amount Of Attorney’s Fees
Not all divorce lawyers charge the same or put the same amount of work into their product. So, it may be important to ask a divorce court to analyze the work before awarding attorney’s fees.
“In determining whether the fees charged are reasonable, the trial court considers not only the number of hours the attorney spent on the case but the following factors as well: (1) skill and standing of the attorneys; (2) the difficulty of the issues; (3) the amount and importance of the subject matter in the field of family law; (4) the degree of responsibility involved in the management of the case; (5) the usual and customary charge in the community; and (6) the benefits to the client.” Patel v. Sines–Patel, 373 Ill. Dec. 503, 522 (Ill. App. Ct. 2013)
Expect the divorce attorney requesting fees to give a vainglorious description of their experience and expertise.
“It is well established that the burden of proof is on the attorney to establish the value of his services and that appropriate fees consist of reasonable charges for reasonable services. In order to justify the fees sought, the attorney must present more than a mere compilation of hours multiplied by a fixed hourly rate. Rather, the attorney must provide sufficiently detailed time records that were maintained throughout the proceeding, and those records must specify the services performed, by whom they were performed, the time expended thereon, and the hourly rate charged.” In re Marriage of Kane, 2016 IL App (2d) 150774
Tapping Into The Retainer?
Often parties have litigated the case beyond what they can afford and then demand the other party pay 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.
It is 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.
Spouse Is Held In Contempt
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).
Contempt actions are usually heard while pursuing other aspects of the divorce. This makes it difficult to segregate the fees that stemmed from the contemptuous behavior from the other attorney’s fees incurred. But, it must be done. “It [is] improper for [a] trial court to award…attorney fees for the dissolution proceeding in general under section 508(b)” In re Marriage of Gattone, 739 N.E.2d 998, 1008 (Ill. App. Ct. 2000)
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)
Final Attorney’s Fees In An Illinois Divorce
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. These attorney’s fees are often significant. In most cases, this is how your spouse pays for your attorney’s fees, usually in proportion to the debts your spouse will absorb.
If attorney’s fees are still an outstanding issue after everything is resolved, an Illinois divorce court will finally weigh in on who owes what to which lawyer. At this time, child support, maintenance and the division of assets and debts will allow a court to properly assess who has the capacity to pay their final marital debt: the attorney’s fees of both parties.
“After proofs have closed in the final hearing on all other issues between the parties, 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 the earlier interim fee awards will be rebalanced in the final fee hearing.
“[T]he legislature intended the remedy for any error in the granting of interim attorney fees to be addressed through a comprehensive reconsideration and reallocation at a final hearing on attorney fees held near the entry of the final judgment of dissolution.” In re Marriage of Arjmand, 2017 IL App (2d) 160631
What a final fee hearing usually means is that, if you find yourself owing your own attorney fees at the end of your case, your attorney has filed a petition for fees against you directly at the end of the proceedings.
“The attorneys for the litigants in a dissolution proceeding are considered as parties in interest in an action for attorney’s fees to the extent that while such fees are generally awarded to the client, they properly ‘belong’ to the
attorney.” In re Marriage of Baltzer, 150 Ill. App. 3d 890, 893 (1986)
At the conclusion of this petition, your own attorney will have an order for his or her fees owed which is enforceable in domestic relations and collections courts.
Contact my Chicago, Illinois law firm to discuss the practicality of collecting attorney’s fees during your pending divorce.