Divorce is expensive. Attorney’s fees during and after an Illinois divorce cost are usually in the thousands of dollars and must be paid. Illinois divorce law recognizes that the parties to a divorce or parentage action can ask their spouse, ex-spouse or other parent to contribute to attorney’s fees on a temporary or final basis.
“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)
If the right a spouse to ask for attorney’s fees did not exist, the monied spouse would always get their way as the non-monied spouse could no longer afford to proceed with counsel as litigation ensued. The party with a paid, motivated attorney would always have the advantage over the party without representation or the means to afford a qualified Illinois divorce attorney.
In reality, it is the right of the attorney to ask for attorney’s fees either from the attorney’s own client or their spouse.
“Attorneys in a divorce proceeding are parties in interest in an action for attorney fees and have standing to pursue the action themselves.” In Re Marriage of Dague, 136 Ill. App. 3d 297 ( 1st Dist. 1985).
In Illinois, there are two different ways to ask your spouse, ex-spouse or child’s other parent for attorney’s fees: interim attorney’s fees and a contribution to attorney’s fees.
The distinction between interim attorney’s fees and a final contribution hearing is very important because they each require different standards of proof and, therefore, also require different strategies in order to ensure or avoid paying attorney’s fees.
Interim Fees In An Illinois Divorce Or Parentage Action
Interim fees are any fees requested by one party to be paid by the other party BEFORE the divorce is finalized.
“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)
“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)
A summary hearing means that no testimony is taken. The court reviews financial affidavits and hears arguments from both sides.
“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)
Almost all of these factors are difficult to accurately determine based exclusively on a financial affidavit except for “(H) the amount of the payment or payments made or reasonably expected to be made to the attorney for the other party”
The most important factor in an interim fee hearing is WHO has been paid WHAT.
“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. 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. A responsive pleading shall include costs incurred, and shall indicate whether the costs are paid or unpaid.” 750 ILCS 5/501(c-1)
One party’s paid attorney fees are the most concrete evidence of what the other party’s attorney’s fees are or should be.
Therefore, judges lean into equalizing the attorney’s fees paid by ordering the monied spouse to pay the non-monied spouse whatever the monied spouse has paid their own attorney. This process is referred to as “leveling the playing field.”
“This…interim fee system [is] an attempt to address the problem of the “economically disadvantaged spouse,” where one spouse uses his or her greater control of assets or income as a litigation tool, making it difficult for the disadvantaged spouse to participate adequately in the litigation.” In re Stella, 818 NE 2d 824 – Ill: Appellate Court, 1st Dist., 2nd Div. 2004
Without automatically leveling the playing field, a non-monied spouse will find themselves “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
Both parties will be incentivized to pay their attorneys as little as possible before an interim fee hearing in order to make minimize the effects of leveling the playing field.
It is all for not because eventually, after an Illinois divorce trial, a full evidentiary hearing will be conducted to determine which attorneys are owed what money by whom. Any errors which were made in the summary, non-evidentiary interim fee hearing can be properly resolved in the final hearing for contribution to attorney’s fees.
A motion for interim fees can convert into a motion for final contribution of attorney’s fees if the case has come to a conclusion. “Regardless of the title, the document sets forth the reasons for the petition, including the allegation that [a party] lacks the ability to pay her attorney fees and a request for any additional relief the trial court deems appropriate. She properly attached an affidavit to the petition to provide a factual basis for the fees requested. As the case progressed, she continued to supplement her request for attorney fees by filing revised affidavits to reflect the growing costs of litigation. As a result, [the other party] had sufficient notice that [the party’s] petition included the contribution of attorney fees incurred throughout the proceedings.” Vance v. Joyner, 146 NE 3d 285 – Ill: Appellate Court, 4th Dist. 2019
Contribution To Attorney’s Fees Hearings In An Illinois Divorce
At the end of the divorce trial, a contribution hearing will be scheduled.
“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)
The trial probably cost a lot of money. Therefore, the trial expenses need to be included in the motion for contribution to attorney’s fees. Additionally, after assets and maintenance have been awarded at trial, the responsibility for attorney’s fees may look very different than it did before trial. Therefore, the parties are granted 14 days after trial to file a motion for contribution to attorney’s fees.
“A petition for contribution, if not filed before the final hearing on other issues between the parties, shall be filed no later than 14 days after the closing of proofs in the final hearing or within such other period as the court orders.” 750 ILCS 5/503(j)(1)
“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
Effectively, this means that courts can award attorney’s fees for almost any reason. With no requirement of a written findings for those reasons, courts will simply do what they want for any reason they want.
The broadness of the evidence which a court can consider means that the attorneys asking for their fees had better put on an impressive evidentiary hearing. The submission of invoices into evidence, the reasons for costs, the magnitude of the work both in and out of court should all be testified to.
Judges will remember a litigant’s behavior throughout the trial when awarding fees. “[A litigant] should be responsible for [their] own attorney fees [when] the trial court ruled that [they] had engaged in actions “designed to delay and harass” petitioner, including the failure to comply with discovery orders and orders for depositions, thereby prolonging the case and causing [the other party] additional expense. ” In re Marriage of Samardzija, 365 Ill. App. 3d 702, 709 (Ill. App. Ct. 2006)
While the other party’s paid attorney’s fees are important evidence of the magnitude of work done, the other party’s fees are not evidence of the work that your attorney performed.
“[N]othing in [the statute] requires the trial court to “equalize” fees in a contribution fee hearing.” In re Marriage of DeLarco, 728 NE 2d 1278 – Ill: Appellate Court, 2nd Dist. 2000
A court can deny fees if it finds “that too much time was spent on all matters due to the parties’ failure to compromise” In re Marriage of Walters, 604 NE 2d 432 – Ill: Appellate Court, 2nd Dist. 1992
Attorney fee awards are almost always made in lump sum.
“A contribution award (payable to either the petitioning party or the party’s counsel, or jointly, as the court determines) may be in the form of either a set dollar amount or a percentage of fees and costs (or a portion of fees and costs)” 750 ILCS 5/503(j)(3)
I have never seen an award for a percentage of fees and costs because it would require the client to agree that they are legally responsible for the balance. This is, practically, as unwieldy as the statute it is based on.
“When awarded “a percentage of fees and costs (or a portion of fees and costs) to be subsequently agreed upon by the petitioning party and counsel or, alternatively, thereafter determined in a hearing pursuant to subsection (c) of Section 508” 750 ILCS 5/503(j)(3)
Contribution hearings are not exclusively heard after a divorce trial. Contribution hearings can be asked for whenever an Illinois family law matter is effectively finalized.
“At the conclusion of any pre-judgment dissolution proceeding under this subsection, contribution to attorney’s fees and costs may be awarded from the opposing party in accordance with subsection (j) of Section 503” 750 ILCS 5/508(a)
Unmarried parents never get a divorce trial, so they can ask for attorney’s fees at any time.
“Except as otherwise provided in this Act, the court may order, in accordance with the relevant factors specified in Section 508 of the Illinois Marriage and Dissolution of Marriage Act, reasonable fees of counsel, experts, and other costs of the action, pre-trial proceedings, post-judgment proceedings to enforce or modify the judgment, and the appeal or the defense of an appeal of the judgment to be paid by the parties.” 750 ILCS 46/809
Post-Judgment Attorney’s Fees In An Illinois Divorce
Before a divorce is finalized, it is easy to identify whether a request for attorney’s fees is of an interim or final in nature. If a trial has not yet occurred, it’s a request for interim fees. If a trial has already occurred, it is a request for final fees.
If a trial occurred and there has been subsequent motions to modify or enforce, then attorney’s fees may still be at issue.
Post-judgment, attorneys fees are heard on the same summary, non-evidentiary basis as interim fees.
“A petition for temporary attorney’s fees in a post-judgment case may be heard on a non-evidentiary, summary basis.” 750 ILCS 5/508(a-5)
The statute is silent as to final hearings on attorney’s fees for post-decree matters.
Case law, however, clarifies that final evidentiary hearings for attorney’s fee can still occur in a post-decree matter.
“Section 508 governs attorney fees generally, including petitions for contribution of attorney fees and costs incurred in postdecree proceedings and initial dissolution proceedings…[S]ection 503(j) governs the procedural requirements applicable to petitions for contribution of attorney fees and costs incurred prior to the entry of final orders for dissolution of marriage. The phrase “all other issues,” in section 503(j) refers to bifurcated contested trials, when the grounds are tried first and “other remaining issues” are either settled or tried separately….Further, in the section 503 context, attorney fees are awarded in view of the total disposition of property and assets, thus justifying the -day requirement for filing a petition for contribution of attorney fees. Practically, a judge rarely decides “other remaining issues” immediately after a contested trial on the remaining issues. The petition for fees must, however, be presented to the judge after close of the evidence, and then attorney fees are decided as part of the overall property and asset distribution.” Blum v. Koster, 919 NE 2d 333 – Ill: Supreme Court 2009
Just because you can ask for your spouse to pay your attorney’s fees does not mean that you should expect your spouse to finance your divorce. Few quality divorce attorneys will effectively lend their time to you in exchange for the mere possibility that a person who hates you will pay your past, current and future attorney’s fees. It is better to picture attorney’s fees paid by your spouse as an added bonus rather than an entitled right. The other issues in your case, parenting time, child support, property division and maintenance, should be far more important than attorney’s fees.
If you would like to discuss who will pay the attorney’s fees in your Illinois divorce or parentage case, contact my Chicago, Illinois family law firm to arrange for a free consultation with an experienced Chicago divorce attorney.