Posted on May 11, 2024

Can You Go To Jail For Not Paying Attorney’s Fees In Illinois?

Lawyers make the rules in divorce court. Lawyers enforce the rules in divorce court. It should be no surprise that lawyers have significant powers to ensure that they get paid in an Illinois divorce court.

Lawyers can ask the court to enter an order that the opposing side and/or even their own client pay their fees. An order to pay a divorce lawyer can be enforced by a subsequent order incarcerating the party who owes the lawyer.

If you didn’t like your ex’s divorce lawyer, you will really dislike the lawyer when they put you in jail.

Even your own divorce lawyer can send you to jail after an Illinois divorce!

Orders For Attorney’s Fees In An Illinois Divorce

Attorney’s fees can be awarded from one party in an Illinois divorce to the opposing attorney during the divorce.

“[T]he court…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.” (Emphases added.) 750 ILCS 5/501(c-1)(3)(emphasis provided)

Interim attorney’s fees should be liberally granted. Note that the statute says that a court “shall” award attorney’s fees if that party “has the financial ability to pay” and the other party “lacks sufficient access to assets or income.”

Illinois divorce judges can award attorney’s fees before, during or after a divorce for any reason after a hearing.

“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)

Illinois divorce judges can be reluctant to order interim attorney’s fees as they do not want to “put gas on the fire” of the ongoing litigation. Judges should be reminded of the language of the statute.

While Illinois divorce judges can award attorney’s fees for bad behavior, Illinois divorce judges must award attorney’s fees as a punishment for violating a court 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).

Even if interim fees are not awarded during the divorce, an award of final attorney’s fees can be made at the end of the case.

A special hearing can be requested after the trial to determine who owes what to the divorce lawyers.

“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)

This final 503(j) hearing can punish an overly litigious party by awarding attorney’s fees to against them and to the other side.

“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

A divorced person’s own lawyer can ask the court to order their client to pay their fees via 750 ILCS 5/508(c). This statute is written in a cumbersome matter which largely describes what the statute does not allow. If you need to read the statute: it’s here.

Case law does a better job of describing how a divorce lawyer can sue their own client for fees.

“Section 508(c) provides that the court may order that the award of attorney fees be paid directly to the attorney, who may enforce such order in his name.  The attorney has standing pursuant to section 508(c) to pursue an action for fees himself as a party in interest and section 508(c) promotes judicial economy by eliminating the need for an attorney to bring a separate suit to collect fees from his client.” In re Marriage of Baniak, 957 NE 2d 469 – Ill: Appellate Court, 1st Dist., 5th Div. 2011

The court is going to order attorney’s fees owed by a client unless the fees cannot be determined as reasonable. The judge is lawyer. The judge knows what attorney’s fees are reasonable and what attorney’s fees are not reasonable. As a former lawyer, a judge’s version of “reasonable” will always be higher than yours…but probably lower than the attorney requesting the fees.

“The determination of reasonable attorney’s fees and costs…is within the sound discretion of the trial court.” 750 ILCS 5/508(c)

“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)

Enforcement Of Attorney’s Fee Awards During Or After An Illinois Divorce

An award of attorney’s fees in an Illinois divorce is like any other order…it must be followed.

“A trial court has the inherent authority to enforce its judgments.” In re Marriage of Ward, 641 NE 2d 879 – Ill: Appellate Court, 2nd Dist. 1994 (Citation Omitted)

Enforcing the order for attorney’s fees depends on how the order is written. If the order merely specifies a flat sum amount owed, it could be argued that the order is a mere money judgment that must be collected via collections. Money judgments simply state what is owed…not how that owed money is to be collected.

“A judgment, of course, may require one party to pay money to another. This money judgment, however, only states that a party must pay a particular sum. The judgment does not specify the income or property from which the judgment debtor must satisfy the obligation.” In re Marriage of Logston, 469 NE 2d 167 – Ill: Supreme Court 1984

“No judgment shall bind the goods and chattels of the person against whom it is entered, until a certified copy thereof is delivered to the sheriff or other proper officer to be served” 735 ILCS 5/12-111

A court order that fails to specify how an order to pay attorney’s fees is paid is a mere piece of paper which does not attach to a person’s assets or income until the formal processes of collections are completed.

“No judgment shall bind the goods and chattels of the person against whom it is entered, until a certified copy thereof is delivered to the sheriff or other proper officer to be served” 735 ILCS 5/12-111

If a money judgment for attorney’s fees cannot even stick to a debtor’s assets, how can someone who owes attorney’s fees be ordered to go to jail?

Debtor’s prisons don’t exist in Illinois.

“No order shall be entered for the incarceration of a judgment debtor as a means of satisfying a money judgment…and it appears from a special finding of the jury, or from a special finding by the court…that malice is the gist of the action, and except when the judgment debtor refuses to deliver up his or her estate for the benefit of his or her creditors.” 735 ILCS 5/12-107

This prohibition on imprisoning people for mere debt does not ring true in an Illinois divorce court. Someone can be jailed for failure to pay ordered attorney’s fees in an Illinois divorce court.

“[T]his court has long held that commitment for the contumacious failure to comply with a court order, even where that order is to pay money, is not imprisonment for debt.” In reMarriage of Harnack and Fanady, 216 NE 3d 261 – Ill: Appellate Court, 1st Dist., 3rd Div. 2022

As long as attorney’s fees can be requested to be paid at a time certain (even after the order is entered). If the ordered attorney’s fees are not paid timely, attorney’s fees the attorney can request that the party owing attorney’s fees be jailed.

“A body attachment order has long been held an appropriate vehicle to effectuate an order of commitment after a person has been adjudged in civil contempt.” In re Marriage of Harnack, 2022 IL App (1st) 210143

Contempt is when “[a] party who understands the court’s order but chooses to ignore the mandate” Killion v. City of Centralia, 381 Ill. App. 3d 711, 715 (2008)

“[A]n order providing for a jail sentence for noncompliance with an order of court to pay a money judgment should within its four corners set out the terms upon which a contempt may be purged and the defendant released from jail. Citations to discover assets seek compliance, not punishment.” Todd v. Arbuckle, 272 NE 2d 257 – Ill: Appellate Court, 4th Dist. 1971

The process for contempt for failure to pay attorney’s fees is as follows: “[F]ailure to pay interim attorney fees as ordered was prima facie evidence of contempt.  Once that prima facie case was shown, [the contemnor] had the burden to prove that the failure to make payments was not willful or contumacious and that there exists a valid excuse for [the contemnor’s] failure to pay.  The financial inability to comply with a court order must be shown by definite and explicit evidence.” In re Marriage of Paris, 164 NE 3d 41 – Ill: Appellate Court, 1st Dist., 4th Div. 2020

If you were ordered to pay attorney’s fees and you can afford to pay attorney’s fees BUT you do not pay attorney’s fees…you are going to jail.

Interest On Attorney’s Fees In An Illinois Divorce

It gets worse. If you do not pay attorney’s fees, you will owe interest of 9% annyally on those ordered attorney’s fees.

“[A] judgment for costs [such as attorney’s fees] is as much the judgment of the court as the damages awarded and that interest may therefore be awarded upon a judgment for costs….[therefor] interest is allowable on attorney fees, once they are determined in a final judgment.”  Robinson v. Robinson, 488 NE 2d 1349 – Ill: Appellate Court, 1st Dist. 1986

The only good news is that interest is optional in an Illinois divorce court.

“[T]he [interest awarding] provisions of section 2-1303 are not mandatory, but rather the allowance of interest is within the sound discretion of the trial court.” Robinson v. Robinson, 488 NE 2d 1349 – Ill: Appellate Court, 1st Dist. 1986

Do Attorney’s Fees Orders Expire?

Orders on money judgments last 7 years and, if revived, last 20 years.

“[A] judgment may be revived by filing a petition to revive the judgment in the seventh year after its entry, or in the seventh year after its last revival, or in the twentieth year after its entry, or at any other time within 20 years after its entry if the judgment becomes dormant.” 735 ILCS 5/2-1602

If the order is properly written to include a date of payment, that order is no longer a money judgment but an injunctive order which NEVER expires.

“[A]n  order remains enforceable after 20 years, even in the absence of a revival action, until it is set aside on appeal or otherwise vacated or modified by the court that granted it.” In re Estate of Pigott, 139 NE 3d 642 – Ill: Appellate Court, 1st Dist., 5th Div. 2019

How To Avoid Going To Jail For Failure To Pay Attorney’s Fees In An Illinois Divorce

A divorced party is going to have to enter into an agreed order between themselves and the divorce lawyer they owe money to. The agreed order has to be very specific so that everyone knows exactly what they are obligated to do.

“A consent judgment between client and counsel…is permissible if it is entered pursuant to a verified petition for entry of consent judgment, supported by an affidavit of the counsel of record that includes the counsel’s representation that the client has been provided an itemization of the billing or billings to the client, detailing hourly costs, time spent, and tasks performed, and by an affidavit of the client acknowledging receipt of that documentation, awareness of the right to a hearing, the right to be represented by counsel (other than counsel to whom the consent judgment is in favor), and the right to be present at the time of presentation of the petition, and agreement to the terms of the judgment.” 750 ILCS 5/508(d)

The divorced party can even guarantee their payments by pledging assets in case of failure to pay so long as the agreement is approved by the court.

“No consent security arrangement between a client and a counsel of record, pursuant to which assets of a client are collateralized to secure payment of legal fees or costs, is permissible unless approved in advance by the court as being reasonable under the circumstances.”

Pay your divorce attorney or your ex’s divorce attorney. Illinois divorce attorneys will get an order to force you to pay. Divorce attorneys will, if aggressive, order that you will be jailed until you can pay what you can pay (which is always some amount).

Failing that, contact my Chicago, Illinois family law firm to discuss what limited options you have to resolve your debt to a divorce attorney with an experienced Illinois divorce lawyer.

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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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