Posted on December 25, 2024

Defending A Petition For Attorney’s Fees In An Illinois Divorce

Divorce lawyers are expensive. What’s worse, you may have to pay for your spouse’s divorce lawyer via court order. You may be ordered to pay attorney’s fees if you are the spouse who controls the marital assets, is earning more or is just taking a principled stand that the court does not agree with.

If your spouse’s attorneys do file a petition for attorney’s fees, there are ways you can mitigated the potential fees both in the short term and in the long term.

There Are Different Types Of Petitions For Attorney’s Fees

Your spouse’s petition for attorney’s fees should state which statute they are basing their petition for fees upon.

An Illinois divorce court has broad discretion to award attorney’s fees under 750 ILCS 5/508(a) and 750 ILCS 5/501(c-1). Pre-judgment, 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)

I emphasize the word “may” because these awards are completely discretionary. Divorce judges do not necessarily enjoy awarding interim fees because giving a divorce attorney money can be like giving an arsonist more gasoline. Money for attorney’s fees will inevitably be spent on litigation instead of being divided by the parties at the end of the case.

If you see 750 ILCS 5/508(a) cited in a petition for attorney’s fees, they must proceed under 750 ILCS 5/501(c-1)’s rules.

“Except for good cause shown, a proceeding for (or relating to) interim attorney’s fees and costs in a pre-judgment dissolution proceeding shall be nonevidentiary and summary in nature.” 750 ILCS 5/501(c-1)

Nonevidentiary hearings are based on the written petition and an oral argument alone. There will be no testimony. So, to defend against a petition for attorney’s fees, you must attack the petition.

A petition for attorney’s fees must explain certain facts and positions.

“All hearings for or relating to interim attorney’s fees and costs under this subsection shall be scheduled expeditiously by the court. 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)(1)

If there’s no affidavit. The petition for fees should be stricken. If there is an affidavit, the affidavit must “delineate the relevant factors.”

“In assessing an interim award, the court shall consider all relevant factors, as presented, that appear reasonable and necessary, including to the extent applicable:(A) 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;(B) the needs of each party;(C) the realistic earning capacity of each party;(D) any impairment to present earning capacity of either party, including age and physical and emotional health;(E) the standard of living established during the marriage;(F) 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;(G) each party’s access to relevant information;(H) the amount of the payment or payments made or reasonably expected to be made to the attorney for the other party; and(I) any other factor that the court expressly finds to be just and equitable.” 750 ILCS 5/501(c-1)

Each factor must be countered in your responsive pleading.  If one of the above factors not addressed in the petition for attorney’s fees, addressed in your responsive pleading with special emphasis on how the original petition for fees ignored that factor.

You must be honest about how much you have already paid your attorney. “A responsive pleading shall set out the amount of each retainer or other payment or payments, or both, previously paid to the responding party’s counsel by or on behalf of the responding party.” 750 ILCS 5/501(c-1)

Because of this requirement, it is natural for a judge to award the opposing side the same fees that you’ve already paid. This prevents the spouse with less financial resources from “being litigated into poverty and that, accordingly, one of [the court’s] priorities [should be] to level the playing field.” In re Marriage of Radzik and Agrella, 955 NE 2d 591 – Ill: Appellate Court, 2nd Dist. 2011

The defense to any interim fee award is to remind the court that “[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)

The standard of determining an inability to pay attorney’s fees is “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 [their] financial stability.” In re Marriage of Heroy, 2017 IL 120205, ¶ 19

Simply remind the court that the party has the capacity to pay with a credit card and pay the minimum monthly payment for those fees.

The interim fee award is crucial. If your spouse is not awarded fees, you will be able to litigate only hindered by your own capacity to pay your own attorneys. Furthermore, if your spouse was remotely honest in their affidavit, they will not be able to properly proceed without a contribution to their attorney’s fees from you. A favorable settlement will soon be on the horizon.

Some divorce attorneys are undeterred by their failure to be awarded attorney’s fees, however. These divorce attorneys will attempt to collect their fees from the assets of BOTH parties at the end of the case (discussed later). (Note: I am not one of these attorneys, I get paid on time).

Even if a 750 ILCS 5/508(a) or 750 ILCS 5/501(c-1) “An interim award of attorney fees is strictly temporary in nature, subject to adjustment (including, if necessary, the disgorgement of overpayments to an attorney) at the close of the dissolution proceeding.” In re Marriage of Arjmand, 2017 IL App (2d) 160631

Attorneys will get paid at the end directly from the parties.

“After proofs have closed in the final hearing on all other issues between the parties (or in conjunction with the final hearing, if all parties so stipulate) and before judgment is entered, a party’s petition for contribution to fees and costs incurred in the proceeding shall be heard and decided” 750 ILCS 5/503(j)

Final fees can take into account any assets either party has (marital or non-marital) at the end of the divorce and any maintenance awarded to either party.

“Any award of contribution to one party from the other party shall be based on the criteria for division of marital property under this Section 503 and, if maintenance has been awarded, on the criteria for an award of maintenance under Section 504.” 750 ILCS 5/503(j)(2)

In conclusion, a petition for attorney’s fees is not certain to be awarded prior to an Illinois divorce’s resolution but the divorce lawyers will get paid eventually by someone. Obviously, not paying your spouse’s divorce lawyers in the early or middle stages of your divorce  will be of massive strategic advantage to you in terms of your ability to litigate or even negotiate versus their own financial capacity to do so.

While attorney fee petitions under 750 ILCS 5/508(a) and 750 ILCS 5/501(c-1) can be wishy washy, there is another attorney fee statute, 750 ILCS 5/508(b) which is dead serious and you must avoid at all cost.

750 ILCS 5/508(b) Attorney Awards Are Mandatory

Just below 750 ILCS 5/508(a)’s statute which is largely a vague plea for financial fairness in an Illinois divorce is the must stricter 750 ILCS 5/508(b).

“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 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 5/508(b)(emphasis mine)

750 ILCS 5/508(b) differs sharply from 750 ILCS 508(a) with their respective “may” vs. “shall” language in that attorney’s fees must be awarded.

“Section 508(b) makes mandatory the imposition of attorney fees where the party seeking the enforcement of a court order prevails and the court finds that the other party’s failure to comply was without compelling cause or justification. A trial court must impose fees without consideration of either party’s ability to pay” In re Marriage of Hyman, 2024 IL App (2d) 230352

In addition to the attorney’s fees being mandatory, the court has the power to order them paid by a date certain under 750 ILCS 5/508(b), “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.”

An Illinois divorce court can only reduce fees required by 750 ILCS 5/508(b) if it finds the fees to be unreasonable.

“[T]he court considers only the reasonableness of the fee award. Id. In determining reasonableness, a court should consider such factors as the nature of the case, the novelty and/or difficulty of the issues involved, the importance of the matter, the standing and skill of the attorney, the degree of responsibility required, the usual and customary charges for similar work, the benefit to the client, and whether there is a reasonable connection between the fees requested and the amount involved in the litigation. The trial court’s only discretion in this regard extends to the determination of the amount of reasonable fees. In making this determination, a trial court may rely on the pleadings, affidavits on file, and its own experiences.” In re Marriage of Hyman, 2024 IL App (2d) 230352

Even if the court does reduce the attorney’s fees awarded under 750 ILCS 5/508, that same court must explain itself or be appealed.

“When a trial court reduces the amount requested in a fee petition, the court’s ruling should include the reasons justifying a particular reduction.” Richardson v. Haddon, 375 Ill. App. 3d 312, 315 (2007).

A court’s explanation of a reduction of fees need not be super detailed, however. Illinois divorce law “does not require the trial court to review the attorney’s billing entries line-by-line and affirmatively strike those individual entries that it deems unreasonable, nor does [Illinois divorce law] require the court to provide a “specific explanation supporting each reduction.” In re Marriage of Kane, 2016 IL App (2d) 150774

Even appealing an Illinois divorce judge’s 750 ILCS 5/508(b) decision could expose you to more attorney’s fees.

“Awards may be made in connection with the following:..((3) The defense of an appeal of any order or judgment under this Act, including the defense of appeals of post-judgment orders.” 750 ILCS 5/508(a)(3)

If the judge awarded your spouse fees for the trial level case, the same judge will probably order you to pay your spouse’s fees for the appellate level case.

Once the 750 ILCS 5/508 fees are mandatorily awarded, your only defense is to say it is impossible to pay those fees. You’ll still owe the fees, but the court can’t punish you via contempt if you can show you could not pay those fees and your bare living expenses.

“The contemnor must be capable of taking the action sought to be coerced” In re Marriage of Betts, 200 Ill. App. 3d 26, 44 (1990)

“[A] finding of civil contempt is not proper unless the ability to purge a contempt finding is within the power of the contemnor.” Marriage of O’Malley, 2016 IL App (1st) 151118

“A party seeking to avoid a contempt finding may pay his ‘bare living expenses’ and ‘mere necessities of life’ but he must apply any remaining funds towards his support obligations.” In re Marriage of Logston, 103 Ill. 2d 266, 286 (1984), which quoted Shaffner v.Shaffner, 212 Ill. 492, 496 (1904))

Of course, if you’ve reached the point of pleading poverty to avoid attorney’s fees, you have zero leverage to achieve your true goals in your divorce. I say this to encourage you to NEVER get into the position where you’ll be liable for 750 ILCS 5/508(b) fees. Simply settle those fees as soon as possible. A finding of contempt will hijack your entire case financially and the judge will be forced to punish you no matter the merits of your case.

In fact, these attorney fee awards will accrue a mandatory 9% interest.

“[J]udgments recovered in any court shall draw interest at the rate of 9% per annum from the date of the judgment until satisfied” 735 ILCS 5/2-1303

“[T]he application of interest under section 2-1303 is mandatory, so a trial court has no discretion to refrain from imposing [postjudgment] interest upon a money judgment.” Stanphill v. Ortberg, 2020 IL App (2d) 190769, ¶ 9

In contrast to the mandatory 750 ILCS 5/508 attorney’s fees and interest on those fees, fighting 750 ILCS 5/508(a) fees always allows you to live to fight another day via other temporary motions or a final 750 ILCS 5/503(j) adjustment.

To quote the late great Kenny Rogers, “You gotta know when to hold ‘em and know when to fold ‘em.”

If you’d like to discuss your strategy regarding attorney’s fees, contact my Chicago, Illinois family law firm to schedule an appointment 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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