Posted on January 6, 2024

Chose In Action In An Illinois Divorce

At the end of an Illinois divorce, the two divorced parties will have a variety of obligations to each other. A Marital Settlement Agreement may specify a transfer of deeds, car titles, support payments and attorney’s fees between the parties.

One thing that marital settlement agreements almost never include is payments to the opposing party’s divorce attorney. While your former spouse may no longer like you, I assure you that your former spouse dislikes your divorce attorney even more. Almost no one voluntarily agrees to pay their ex-spouse’s former attorney, instead, parties to a divorce prefer to pay the ex-spouse directly. The presumption is that the spouse will use the settlement proceeds to pay their own attorney fees.

In an Illinois divorce that goes to trial, a lawyer can be awarded money from the opposing party but the standard is that each party to an Illinois divorce is 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)

In the end, almost all attorney’s fees in an Illinois divorce are owed from the client to their own attorney.

Therefore, a conundrum arises when ex-spouse A owes ex-spouse B money but ex-spouse B owes their divorce lawyer money. How do these cascading obligations resolve themselves in an Illinois divorce?

For example, a party to an Illinois divorce may then be awarded $50,000 from their ex-spouse but owe $ 50,000 to their own attorney.

These second-hand obligations may create some very bad incentives. A divorced party may prefer that the parent of their children keep the money than have a third-party, their divorce lawyer, get the money.

In such a case, the divorce lawyer is not without options against a client who does not want to pay what is owed.

The Illinois Marriage And Dissolution of Marriage Act, specifically contemplates a lawyer suing their own client for fees.

“Final hearings for attorney’s fees and costs against an attorney’s own client, pursuant to a Petition for Setting Final Fees and Costs of either a counsel or a client, shall be governed by the following:

Any amount awarded by the court must be found to be fair compensation for the services, pursuant to the contract, that the court finds were reasonable and necessary. Quantum meruit principles shall govern any award for legal services performed that is not based on the terms of the written engagement agreement (except that, if a court expressly finds in a particular case that aggregate billings to a client were unconscionably excessive, the court in its discretion may reduce the award otherwise determined appropriate or deny fees altogether).” 750 ILCS 5/508(c)

A judgment against a former client is just a piece of paper if that former client has no assets…even if the assets are promised to the client via a Marital Settlement Agreement.

Furthermore, the divorce lawyer’s judgment is ONLY against their own client NOT the opposing party who may owe money to that client.

Judges want the lawyers who are in front of them every day to get paid for the hard work the judges see the lawyers doing. Failure to pay a divorce attorney pursuant to an order will result in that attorney filing a petition to hold the former client in contempt of court for failure to pay.

If the former client does not have any liquid assets (even though they are owed assets by their ex), the former client’s actions will not be found to be “willful and contumacious” and they will not be held in contempt of court.

The divorce lawyer cannot hold the opposing side in contempt for failure to pay their attorney’s fees after a Marital Settlement Agreement has been entered which does not provide for that specific transfer.

“[When a third-party is] not a party to the divorce action and was only an incidental beneficiary of the decree [they cannot pursue a[ contempt] action against a party who owes money to the other party that owes money to the third-party-.It is quite usual in matrimonial cases for the court to order one spouse to pay a debt or obligation of the other. Great difficulties could well arise if such creditors could, as a matter of right, use the contempt process to require such payment.” Diaz v. Diaz, 83 Ill. App. 3d 341, 343 (Ill. App. Ct. 1980)

A divorce attorney can still collect from the ex-spouse who owes their own client money by issuing the ex-spouse a citation to discover assets.

A citation to discovery assets will “Compel any person cited, other than the judgment debtor, to deliver up any assets so discovered, to be applied in satisfaction of the judgment, in whole or in part, when those assets are held under such circumstances that in an action by the judgment debtor he or she could recover them in specie or obtain a judgment for the proceeds or value thereof as for conversion or embezzlement. A judgment creditor may recover a corporate judgment debtor’s property on behalf of the judgment debtor for use of the judgment creditor by filing an appropriate petition within the citation proceedings.” 735 ILCS 5/2-1402(c-3)

If an ex-spouse owes money to their ex-spouse who owes money to a divorce lawyer a court can “summarily compel the application of discovered assets or income to the satisfaction of the judgment, as long as the judgment debtor would have the right to recover such assets from the third party.” Mid-American Elevator Co. v. Norcon, Inc., 287 Ill. App. 3d 582, 587 (1996)

This capacity for a creditor to step into his debtor’s shoes and pursue a the debts owed to that debtor is called a “chose in action.”

“A ‘chose in action’ is a legal claim: the right to bring a lawsuit to recover on a debt, a claim for damages, or other claim to recover property.” In re Marriage of Davis, 2022 IL App (1st) 210623

A divorce lawyer need not reduce their final attorney’s fees to a judgment in writing to pursue a chose in action against the debtor’s debtor.

“It would be a mistake, however, to suggest that a chose in action must be actively litigated or reduced to a judgment. Rather, the point is that a chose in action is a claim that could be litigated.” In re Marriage of Davis, 2022 IL App (1st) 210623

Divorce lawyers will get paid one way or another. Work something out with your divorce lawyer and make sure that all divorce lawyers are compensated or the litigation will continue.

Unfortunately, in the divorce cases where one spouse has no money, there is no other option but to take a case, effectively, on contingency. Hopefully, everyone realizes that the divorce lawyer will eventually be paid.

In reality, quality divorce lawyers are rarely owed such significant sums of money that they have to chase their client and their client’s ex-spouse for money. Excellent lawyers get paid up front and their invoices get paid promptly by the clients via whatever means necessary. The alternative is hiring a divorce lawyer who is essentially lending the client time/money to possibly pay the divorce lawyer when the divorce lawyer eventually sues the client at the end of the case. If that sounds unseemly…it is because it often is.

If you would like to talk about how your legal fees will be paid in your Illinois divorce, contact my Chicago, Illinois 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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