Divorcing can be expensive, but what if you can’t afford to pay for attorney’s fees? In Illinois, divorce laws offer some relief if you truly cannot pay attorney’s fees. But, proving you’re ‘broke’ is only part of the challenge.
An Illinois divorce court can award attorney’s fees from one party to the other party’s attorney under 750 ILCS 5/508(a) and 750 ILCS 5/501(c-1). These two statutes work in tandem.
“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. Interim attorney’s fees and costs may be awarded from the opposing party, in a pre-judgment dissolution proceeding in accordance with subsection (c-1) of Section 501” 750 ILCS 5/508(a)(emphasis mine)
Even Guardian Ad Litems and Child Representatives can sue litigants for attorney’s fees.
“The court shall enter an order as appropriate for costs, fees, and disbursements, including a retainer, when the attorney, guardian ad litem, or child’s representative is appointed… The provisions of Sections 501 and 508 of this Act shall apply to fees and costs for attorneys appointed under this Section.” 750 ILCS 5/506(b)
While statutes set the groundwork for attorney fee awards, case law clarifies how courts apply these rules in real-life situations.
When asking a court to award attorney’s fees from your spouse “[t]he party seeking an award of attorney fees must establish her inability to pay and the other spouse’s ability to do so.” In re Marriage of Schneider, 214 Ill. 2d 152, 174 (Ill. 2005)
Sure, it’s easy to prove that you’re broke but it’s not as easy to prove that your ex is not broke too. Typically, courts conduct attorney fee hearings via summary hearing using nothing more than the parties’ financial affidavits. So, you are going to have to hope that your ex has claimed to have a large monthly surplus on their financial affidavit (this almost never happens).
If both parties have no excess income beyond their expenses, Illinois divorce court will not order one allegedly broke litigant to pay another allegedly broke litigant.
When a “trial court f[inds] that neither party ha[s] the ability to pay the reasonable attorney fees that had been charged. Accordingly, it [will] decline[] to assess fees against either party.” In re Marriage of Jaster, 583 NE 2d 659 – Ill: Appellate Court, 2nd Dist. 1991
“Capacity to pay” is in the eye of the beholder in an Illinois divorce court.In re Marriage of Krivi, 283 Ill. App. 3d 772 (1996) lays out the logic to denying all litigants attorney’s fees if no one has the capacity to pay. “Because respondent has virtually no liquid assets and little money left over each month after paying his expenses, respondent would either have to refinance his home, take out a loan, or sell off assets he needs, like his car and household appliances, in order to pay off $19,088.19 in attorney fees. Inflicting financial ruin on the party being asked to pay attorney fees is no more appropriate than requiring the fee-seeking spouse to suffer financial ruin… Cases like the instant case are always the most difficult to resolve because the evidence shows that neither party is in strong financial condition. Petitioner has failed to show her inability to pay and respondent’s ability to pay. This case could also be fairly characterized as one in which the financial circumstances of both parties are substantially similar in that neither party is particularly able to pay attorney fees. Where the financial circumstances of both parties are substantially similar, an award of attorney fees may be an abuse of discretion.”
There are definitely some limits to capacity to pay attorney’s fees set by Illinois case law.
It is “grossly unfair” to require a party to pay “attorney fees [that are] well in excess of one year of h[is] gross income.” In re Marriage of Brooks, 138 Ill. App. 3d 252, 266 (1985)
Pleading poverty may avoid an attorney fee award but it does not solve your real problem: your ongoing conflict with your ex. Furthermore, good luck having your current attorney continue to represent you when you just testified under oath to your “inability to pay attorney’s fees”
Note that while 750 ILCS 5/501(c-1), 750 ILCS 5/508(a), and 750 ILCS 5/503(j) look to the capacity of the parties to pay attorney’s fees, 750 ILCS 5/508(b) does not concern itself with the capacity to pay.
“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)
Awards of attorney’s fees made under 750 ILCS 5/508(b) will stand whether the party has the capacity to pay or not. In re Marriage of Budorick, 178 NE 3d 726 – Ill: Appellate Court, 1st Dist., 5th Div. 2020
If you cannot pay for your ex’s attorney’s fees that’s not a problem…but it is an issue. However, failure to pay for your own attorney will result in your attorney withdrawing from your case.
After an attorney has withdrawn from a case, the attorney can sue his or her own client for attorney’s fees under 750 ILCS 5/508(c). This statute is written in such a convoluted manner that I refuse to quote it like I do in all the other articles. I believe it is written purposely to disadvantage former clients by rendering the language inscrutable.
An attorney can sue their former client within the existing divorce case. This creates an optics problem because after you’re pleading for relief in your underlying divorce, your former attorney can break the judge’s attention by reminding the judge that you (and the marital estate) owe your former attorney money. Because of this, I strongly recommend that you enter into a consent judgment as to the debts you owe your former attorney to remove them from your ongoing case.
Divorce litigants often think that it is a “bad look” to have been represented by multiple attorneys. I don’t think divorce judges care about switching attorneys. They just want you to be represented so the case goes more smoothly. They do care if owe multiple divorce attorneys money. Judges used to be lawyers and, therefore, are not likely to empathize with someone who owes a lawyer money.
If your strategy regarding your spouse’s petition for attorney fees and your own attorney’s petition for attorney’s fees is to say to the court “I’m broke,” I suggest you stay broke for the entirety of your case. If discovery reveals that you are taking vacations or even eating out regularly, you are going to be ordered to pay some kind of attorney’s fees.
Additionally, claiming to have no money in your divorce begs the question, “What are you even doing here? Why don’t you just settle because there’s nothing to fight over.”
Of course, this question is cold comfort if you are in a custody battle where money is not your objective.
If you are truly struggling financially, I strongly recommend you approach one of the many legal aid organizations available in Illinois. In this era of high interest rates legal aid organizations are finally well funded.
“[A] lawyer deposit client or third-person funds that cannot earn net interest for an individual client or third person into one or more IOLTA [Interest on Lawyer’s Trust Accounts] accounts as defined in Rule 1.15C(b), with the interest earned on any such accounts remitted to the Lawyers Trust Fund of Illinois… The Lawyers Trust Fund of Illinois will use the interest remitted from IOLTA accounts for the purposes set forth in its bylaws, including financial support to Illinois legal aid organizations” Ill. R. Prof’l Conduct (1.15B) cmt. 1,2 (eff. July 1, 2023)
Furthermore, legal aid attorneys do excellent work. I wish you luck!
If you read this and you are NOT broke, contact my Chicago, Illinois family law firm to enjoy a free consultation with an experienced Illinois divorce attorney.
