Divorcing people are more reasonable than you would think. 95% of divorces end up settling out-of-court. But, there are divorce litigants who are so inflamed about the divorce that they refuse any and all attempts to settle.
For the spouse who is willing to settle their divorce case, the refusal to adopt or consider a reasonable settlement is worse than frustrating…it’s horribly expensive. Without a settlement, every little issue must be proven up to the judge using the formal rules of evidence. This is enormously time consuming and divorce lawyers charge a lot of money for their time.
A spouse or former spouse’s refusal to settle can be the be basis for a petition for attorney’s fees.
Illinois divorce courts can award attorney’s fees for any reason the court deems reasonable.
“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)
The settlement-minded litigant should remind the court that failure to compromise is a valid reason to award attorney’s fees.
“The trial court [may] determine[] that the attorney fees resulted from the parties’ unwillingness to compromise. A party cannot enter into such a battle and expect to come out unscathed. 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 the failure to compromise is frivolous. The parties should have been aware of the expenses they were incurring in order to split up the limited pot they were contesting.” In re Marriage of Mantei, 583 NE 2d 1192 – Ill: Appellate Court, 4th Dist. 1991
Excessive attorney fee expenses due to a failure to compromise can even result in a reduction in the total assets awarded to the party failing to compromise.
“The use of marital assets to pay fees to one’s attorney for the costs of the divorce constitutes a dissipation of marital assets.” In re Marriage of Berberet, 2012 IL App (4th) 110749
An Illinois divorce court “shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:
…
the dissipation by each party of the marital property” 750 ILCS 5/503(d)(2)
A court need not even make a dissipation finding in order to award the non-settling spouse less marital assets. “Unnecessarily increasing the cost of litigation is a relevant factor in both the division of property and the allocation of attorney fees.” In re Marriage of Patel and Sines-Patel, 993 NE 2d 1062 – Ill: Appellate Court, 1st Dist., 6th Div. 2013
“Unnecessarily increasing the cost of litigation is a relevant factor in the division of property as well as in allocating attorney fees.” In re Marriage of Haken, 914 NE 2d 739 – Ill: Appellate Court, 4th Dist. 2009
If an Illinois divorce court finds that litigation happened for an “improper purpose,” that court must award attorney’s fees to the other party.
“If at any time a court finds that a hearing under this [s]ection 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)
It could be argued that any litigation that’s a result of a failure to compromise is, at its heart, litigation for an improper purpose (but I don’t think that’s a strong argument).
Attorney’s of uncompromising clients can be denied fees from their own client for “encourag[ing] rogue behavior”. IN RE MARRIAGE OF KANE AND KANE, 76 NE 3d 20 – Ill: Appellate Court, 2nd Dist. 2016
How To Defend Against An Accusation Of A Failure To Compromise In An Illinois Divorce
There is no requirement to settle on some objectively reasonable terms in an Illinois divorce. The courts get it. You’re getting divorced! You don’t get along anymore. You are not expected to just agree to everything…that is why you are in divorce court.
Beyond that, courts should not be hearing ANYTHING about settlements that both sides do not agree to share with the court.
“Generally,…settlement negotiations and settlements are not admissible.” Wilson v. Moon, 138 NE 3d 150 – Ill: Appellate Court, 1st Dist., 4th Div. 2019
“Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction: (1) furnishing or offering or promising to furnish—or accepting or offering or promising to accept—a valuable consideration in compromising or attempting to compromise the claim; and (2) conduct or statements made in compromise negotiations regarding the claim” Ill. Sup. Ct. R. 408
While Rule 408’s language of “liability” and “claim” do not seem to apply to a divorce, the whole of the rules of evidence apply to all Illinois courts and Rule 408 can bar any evidence of the Rule’s title “COMPROMISE AND OFFERS TO COMPROMISE.” What is a divorce settlement if not an “amount of a claim” as described by Rule 408.
A truly savvy response to a Rule 408 objection would be to make an offer of proof.
An offer of proof is to say “Judge, I know you think this evidence is impermissible under the rules but, respectfully, I disagree. To preserve my client’s rights, I have to make an offer of proof of what I would have presented if you had allowed this evidence in.”
“An offer of proof is the key to preserving a possible error when the trial court excludes evidence. One purpose of the offer of proof is to disclose the nature of the offered evidence so that a reviewing court can determine whether the exclusion was erroneous and harmful.” 3 Robert J. Steigmann & Lori A. Nicholson, Illinois Evidence Manual § 20:17 (4th ed. 2023 Update).
Then you show the judge the compromise or the failure to compromise. Even if the judge observes Rule 408, that judge will have seen the failure to compromise and, as the old saying goes, “You can’t unring a bell.”
The reality is that it’s very difficult to get an Illinois judge to believe that one side is exclusively failing to compromise in a divorce. Divorce is ugly. People are not going to agree. Whether that failure to agree is objectively done in bad faith has no specific relief under Illinois law.
In Florida, where I’m also licensed, there is the concept of a “Rosen Letter” that puts the other side on notice that you believe they have not accepted a good faith compromise, and you will be pursuing them for attorney’s fees for all future litigation based on that failure to compromise. Perhaps, in Illinois, I can start a “Knight Letter” to the same effect.
If you want to make your spouse compromise or make your spouse realize that you cannot and will not compromise, contact my Chicago, Illinois family law firm to schedule a consultation with an experienced Illinois divorce attorney.
