Two spouses are an economic unit…even as they divorce. The costs of the divorce is just another marital expense that both spouses are responsible for. While one spouse may be reluctant to pay the other spouse anything in a divorce they will be loathe to pay their spouse’s attorney. Therefore, almost all requests that a spouse pay another spouse’s attorney’s fees are done by court order.
In most court cases, “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.” Housing Authority of Champaign County v. Lyles, 395 Ill. App. 3d 1036, 1038 (2009)
There is a lot of “statutory authority” for spouses to pay each other’s attorney fees but the default is still that each spouse will be responsible for their own fees.
“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 Illinois, there are two statutory regimes that govern how 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
“[I]nterim 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)
The fees should then be buttressed by an affidavit of the attorneys promising the court that their fees are reasonable.
“When a party files a petition for interim attorney’s fees and costs supported by one or more affidavits that delineate relevant factors, the court (or a hearing officer) shall assess an interim award after affording the opposing party a reasonable opportunity to file a responsive pleading.” 750 ILCS 5/501(c-1)
This affidavit is nice but courts can use their own judgment to determine what is truly reasonable.
“The trial court may accept or reject the testimony of the petitioning attorney as to the value of the legal services performed. The court may also rely on its own knowledge and experience in determining the value of the services rendered.” In re Marriage of Walters, 238 Ill. App. 3d 1086, 1099 (Ill. App. Ct. 1992)
As you can see, the factors the court can consider when awarding attorney fees are really broad. 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
Divorce attorneys are not cheap. In determining, whether the fees are reasonable and appropriate “the trial judge may rely on his own knowledge and experience when determining the value of services provided” In re Marriage of Powers, 252 Ill. App. 3d 506, 510 (1993)
One thing the judge need not rely upon in determining the reasonableness of the fees is the contract between the client and the attorney.
“This court has held that, for purposes of determining statutory attorney fees, the term “reasonable” applies regardless of the nature of the client’s contractual relationship with his attorney. ” Blankenship v. Dialist International Corp., 209 Ill. App. 3d 920, 927 (Ill. App. Ct. 1991)
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.
Attorney’s Fees If A 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
The Illinois divorce court doesn’t need to hear any new proofs regarding the final fees under 750 ILCS 5/503(j). The court has assuredly heard enough.
“We do not read section 503(j) as requiring an additional hearing, which would further burden already overburdened trial courts, but, rather, as requiring a trial court to hear, through testimony or otherwise, additional proofs when a petition for contribution is filed in accordance with section 503(j) in the context of preexisting proceedings. If the trial court wishes to hold a separate and distinct hearing on the petition, it has the discretion to do so.” In re Marriage of Brackett, 309 Ill. App. 3d 329, 345 (Ill. App. Ct. 1999)
“In most cases, once the trial court has weighed marital property criteria and, if awarded, maintenance criteria, it will have enough of a record to determine the contribution amount. ” In re Marriage of Hasabnis, 322 Ill. App. 3d 582, 596 (Ill. App. Ct. 2001)
The totality and appropriateness of the lawyers’ work will be considered in awarding attorney’s fees. Frivolous legal work will not be awarded paid by the court.
“While we recognize the purpose of the statute is to allow a spouse to contest the dissolution on an equal footing so that concerns about incurring large attorney fees will not coerce a litigant into conceding meritorious claims, it is an unreasonable expectation to anticipate that the trial court will automatically require the other party to pay such attorney fees regardless of one’s conduct during the litigation. There are times when a failure to compromise is frivolous.” In re Marriage of Mantei (1991), 222 Ill.App.3d 933, 942, 164 Ill.Dec. 870, 583 N.E.2d 1192
“[A party] should be responsible for [their] own attorney fees [when] the trial court ruled that [they] had engaged in actions ‘designed to delay and harass’ petitioner, including the failure to comply with discovery orders and orders for depositions, thereby prolonging the case and causing [the other litigant] additional expense. ” In re Marriage of Samardzija, 365 Ill. App. 3d 702, 709 (Ill. App. Ct. 2006)
Harassment is not the only basis to award excess fees. Over-litigating a case is also a sufficient basis to award attorney’s fees.
“Where the court finds there has been lack of good faith by one of the parties which results in excessive litigation, attorney fees to cover the unnecessary litigation may properly be assessed against the overly litigious party.” In re Marriage of Pillot, 495 NE 2d 1247 – Ill: Appellate Court, 1st Dist. 1986
Most final fee hearings are between clients and their own lawyers. If you find yourself owing your own attorney fees at the end of your case, your attorney can file 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 request for and be granted an order for his or her fees owed which is enforceable in domestic relations and collections courts.
These final orders regarding attorney’s fees are rarely overturned by appeals courts. “Generally, a trial court has broad discretion to award attorney fees, and its decision will not be disturbed on appeal absent an abuse of that discretion.” Northbrook Bank & Trust Co. v. Abbas, 2018 IL App (1st) 162972, ¶ 61
In conclusion, pay the attorney fees that are ordered. Attorneys fees for a divorce (if there were disputed children’s issues) may not even dischargable in bankruptcy.
Will I Have To Sell My House To Pay My Attorney’s Fees After An Illinois Divorce
While a divorce lawyer can get a judgment for fees against the opposing party or their own client, they cannot force the person to sell assets, especially a house, in order to pay those fees.
“[A] party cannot be required to sell real estate to pay attorney fees.” In re Marriage of Goesel, 2017 IL App (3d) 150101, ¶ 20
To be seized as attorney’s fees, the funds must have been already allocated by the court to each party. The divorce lawyers cannot take their fees “off the top” of the marital estate. “Under section 508, which governs attorney fees generally (750 ILCS 5/508 (West 2012)), a court may not order payment of attorney fees directly from the marital estate.” Shen v. Shen, No. 1-13-0733, 35 (Ill. App. Ct. 2015)
Furthermore, retirement funds cannot be tapped to pay attorney’s fees in an Illinois divorce. “A debtor’s interest in or right, whether vested or not, to the assets held in or to receive pensions, annuities, benefits, distributions, refunds of contributions, or other payments under a retirement plan is exempt from judgment.” 735 ILCS 5/12-1006
Retirement funds are often immune to judgments. There are many exceptions where retirement funds may be tapped to pay obligations such as child support and maintenance but “attorney fees do not constitute an exception to the section 12-1006 exemptions” In re Marriage of Radzik, 2011 IL App (2d) 100374
Can You Request Attorney’s Fees In A Petition For Legal Separation In Illinois?
There is an Illinois appellate case where attorney fees awarded in a separation action were affirmed. In re Marriage of Jacobson, 411 NE 2d 947 – Ill: Appellate Court, 1st Dist. 1980 allowed attorneys fees in a separation action.
The counter-argument is that temporary attorney fees are NOT available in a separation action because they are not enumerated in the statute.
“[T]emporary relief and trials shall be the same as in actions for dissolution of marriage, except that temporary relief in an action for legal separation shall be limited to the relief set forth in subdivision (a)(1) and items (ii), (iii), and (iv) of subdivision (a)(2) of Section 501.” 750 ILCS 5/402(a)
750 ILCS 5/501(c-1), the interim attorney fee section, is not included in the acceptable temporary motions for legal separations.
750 ILCS 5/503(j) which allows for a final allocation of fees cannot be invoked in a legal separation because property division (which is 503) can only be done by agreement in a legal separation action.
“If the court deems it appropriate to enter a judgment for legal separation, the court may approve a property settlement agreement that the parties have requested the court to incorporate into the judgment, subject to the following provisions: (1) the court may not value or allocate property in the absence of such an agreement; (2) the court may disapprove such an agreement only if it finds the agreement is unconscionable; and (3) such an agreement is final and non-modifiable” 750 ILCS 5/504(b)
But, 508 is pretty loosey goosey and in re Marriage of Jacobson leans on that to allow attorney’s fees as required by justice.
“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)
Can You Request Attorney’s Fees When You Sue Your Spouse?
A petition for dissolution of marriage can have more claims for relief than just the request for divorce.
“A husband or wife may sue the other for a tort committed during the marriage.” 750 ILCS 65/1
Suing your spouse while getting divorced still entitles you to all of the Illinois Marriage and Dissolution of Marriage Act’s attorney fee provisions for both the tort and the divorce.
“Generally, where a plaintiff presents several claims for relief in the same lawsuit, and only some of the claims for relief are successful, attorney fees may be allowed for all claims involving a common core of facts or based on related legal theories. The key word in that sentence is “may.” If the fees are authorized by a particular statute, the court must scrutinize the particular language and purpose of that statute to determine if it permits fees for related claims.” Thomas v. Weatherguard Constr. Co., No. 1-17-1238, 12 (Ill. App. Ct. 2018)
The second sentence in the Thomas decision doesn’t limit torts attached to divorce actions very much. The “purpose” of the Illinois Marriage and Dissolution of Marriage Act’s fee shifting provision is very broad. “At the conclusion of any pre-judgment dissolution proceeding under this subsection, contribution to attorney’s fees and costs may be awarded from the opposing party” 750 ILCS 5/508(a) (emphasis mine)
Contact my Chicago, Illinois law firm to discuss the practicality of collecting attorney’s fees during your pending divorce.