A family’s dynamics are simply too complicated for a judge to completely digest. Judges appoint Guardian Ad Litems (commonly referred to as a “GAL” )to investigate, report and offer recommendations on what the family should do now and in the future.
If you do not agree on any or all custody matters in your Illinois divorce, expect a Guardian Ad Litem or a Child Representative to be appointed in your case.
“In any proceedings involving the support, custody, visitation, allocation of parental responsibilities, education, parentage, property interest, or general welfare of a minor or dependent child, the court may, on its own motion or that of any party, appoint an attorney to serve in one of the following capacities to address the issues the court delineates” 750 ILCS 5/506(a)
Apart from the identity of the Guardian Ad Litem or Child Representative, the court must also address who is going to pay the Guardian Ad Litem’s or Child Representative’s fees. (For the purposes of the rest of this article I will only refer to Guardian Ad Litems as they are, by far, the more common appointment).
“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.” 750 ILCS 5/506(b)
Usually, this initial payment is a set amount (typically $ 2500 in my experience) divided 50/50 and subject to reallocation. If one parent is clearly the parent who controls the income and the assets of the family, that parent may be responsible for the initial payment to the Guardian Ad Litem…but still subject to later reallocation.
The Guardian Ad Litem is supposed to give the parties and the court regular invoices.
“Any person appointed under this Section shall file with the court within 90 days of his or her appointment, and every subsequent 90-day period thereafter during the course of his or her representation, a detailed invoice for services rendered with a copy being sent to each party. The court shall review the invoice submitted and approve the fees, if they are reasonable and necessary.” 750 ILCS 5/506(b)
When the court tells you to pay the Guardian Ad Litem….you must pay.
“Any order approving the fees shall require payment by either or both parents, by any other party or source, or from the marital estate or the child’s separate estate.” 750 ILCS 5/506(b)
The responsibility for the Guardian Ad Litem’s fees is governed by the same rules that award fees to attorneys.
“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)
Section 501 allocates attorney’s fees as follows:
“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)(1)
An allocation of Guardian Ad Litem fees should use the same factors that a court uses to allocate interim attorney’s fees.
Section 508 just refers back to Section 501…so I’m not even sure why Section 506 refers to Section 508.
“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 and in any other proceeding under this subsection.” 750 ILCS 5/508(a)
Practically speaking, when ordering each party to pay the guardian ad litem a respective amount, the courts look to any “substantial disparity between the abilities of the parties to pay the [guardian ad litem’s fees.” In re Custody of McCuan, 531 NE 2d 102 – Ill: Appellate Court, 5th Dist. 1988
“In view of [one spouse’s] much greater ability to pay, we think it was an abuse of discretion to make [the other spouse] pay most of the [children’s] attorney’s fees” In re Marriage of Kennedy, 418 NE 2d 947 – Ill: Appellate Court, 1st Dist. 1981
Guardian Ad Litem fees seem to have no limit beyond what the court deems “reasonable.” Even if a Guardian Ad Litem has withdrawn and then does additional work before formal re-appointment, the Guardian Ad Litem can still get paid.
“At first blush, it would seem that plaintiff is correct that an order discharging a child representative would end the “course of his or her representation” and thus preclude the award of fees for work done thereafter. However, we do not interpret the statute as creating a per se test binding the trial court to conclude, regardless of its view of the case, that an act is not within the course of representation if it occurs after the trial court has issued an order discharging the attorney. Rather, the Act requires the trial court to reach its own conclusions as to whether work falls within the course of representation (and also whether it meets the other two statutory requirements). In reaching this determination, the trial court may, and should, take into account any relevant factors, including whether a discharge order was entered prior to the performance of the work at issue.” Cooney v. Bischoff, 898 NE 2d 1122 – Ill: Appellate Court, 2nd Dist. 2008
Having a Guardian Ad Litem disagree with your parenting choices is bad but paying that Guardian Ad Litem to tell you that you are a bad parent is the worst. It is extremely difficult to stop a Guardian Ad Litem from continuing to bill you without coming to some kind of agreement with the other parent of your child.
The only other alternative to a Guardian Ad Litem is for the court to appoint a psychiatrist or other mental health professional to render an expert opinion which would be, presumably, superior to the Guardian Ad Litem’s opinion.
“The court may seek the advice of any professional, whether or not regularly employed by the court, to assist the court in determining the child’s best interests.” 750 ILCS 5/604.10(b)
This, however, is just another third party who must be paid by order of the court.
“The court shall order all costs and fees of the professional to be paid by one or more of the parties, subject to reallocation in accordance with subsection (a) of Section 508.” 750 ILCS 5/604.10(b)
If you are the one requesting the professional and the professional is not adopted as the court’s witness, you will be responsible for ALL of the professional’s costs.
“The party requesting the evaluation shall pay the evaluator’s fees and costs unless otherwise ordered by the court.” 750 ILCS 5/604.10
Finally, you cannot even appeal a Guardian Ad Litem’s fees because they almost never final and, thus, appealable. Estate of Rosinski v. Yokoyama, 363 Ill. Dec. 533, 537 (Ill. App. Ct. 2012)
Can Guardian Ad Litem Fees Be Discharged In Bankruptcy?
Often a divorce is a precursor to bankruptcy. A bankruptcy discharges debts but not debts related to a domestic support obligation…which a Guardian Ad Litem fee is deemed to be.
Illinois state law requires that Guardian Ad Litem fees be non-dischargeable in a bankruptcy. “Unless otherwise ordered by the court at the time fees and costs are approved, all fees and costs payable to an attorney, guardian ad litem, or child representative under this Section are by implication deemed to be in the nature of support of the child and are within the exceptions to discharge in bankruptcy under 11 U.S.C.A. 523.” 750 ILCS 5/506(b)
Furthermore. “[a] discharge under [U.S. bankruptcy laws] does not discharge an individual debtor from any debt…for a domestic support obligation” 11 U.S. Code § 523(a)(5)
Attorney’s fees associated with domestic support obligations can be deemed non-dischargable.
“Attorney’s fees that are in the nature of maintenance or support can be nondischargeable under § 523(a)(5) even if payable directly to the attorney.” In re Kline, 65 F.3d 749, 750 (8th Cir.1995)
If attorney fees are associated with matters regarding the support of a child….which all Guardian Ad Litem fees are, they will be deemed to be associated with a domestic support obligation and will, therefore, be nondischargable. Attorney “fees [which] arose in large part from the dissolution trial which focused on child custody and support issues [shall be non-dischargable].” In re Ahlf, 354 BR 884 – Bankr. Court, SD Iowa 2006
While Illinois is not in the Eighth Judicial Circuit, Illinois cases can take notice of cases in nearby Missouri (which is in the Eighth Circuit). “The law in the Eighth Circuit is clear that attorney fees in a domestic relations case awarded directly to the attorney can be excepted from discharge” Kelly v. Burnes (In re Burnes), 405 B.R. 654, 659 (Bankr. W.D.Mo.2009) (citation and footnote omitted))
When they keep mentioning attorney fees, they are also talking about Guardian Ad Litem fees.
“Guardian ad litem fees incurred by [a Guardian Ad Litem] while representing the minor child of the debtor in the post-dissolution custody proceeding are in the nature of support and, therefore, nondischargeable under 11 U.S.C. § 523(a)(5).” In re Staggs, 203 BR 712 – Bankr. Court, WD Missouri 1996
Guardian Ad Litems have no paying client. If Guardian Ad Litems cannot get paid, there will be no more Guardian Ad Litems.
“[P]ublic policy dictates a finding that guardian ad litem fees are excepted from discharge as a domestic support obligation because holding otherwise would have a chilling effect on the willingness of prospective guardians ad litem to serve in that capacity and thus hinder domestic relations courts in their efforts to protect the interests of children.” In re Kassicieh, 425 BR 467 – Bankr. Court, SD Ohio 2010
Contested divorces are extremely expensive. But, you can never get time with a child back…so, the expense is often worth it. Having a good understanding of what expenses are worthwhile and what expenses are not worth the fight is important. Contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney about who has to pay the Guardian Ad Litem’s fees.
