Posted on December 22, 2021

Leveling The Playing Field And Attorney’s Fees In An Illinois Divorce

Divorce law is one of the broadest fields of law. A divorce lawyer needs to know everything from how to value a privately held business to how to determine what a substantial change in circumstances is regarding the best interests of a step-child. In order to keep all these rules straight in our heads, divorce lawyers, like all professionals, use esoteric buzzwords to refer to specific concepts. One of those divorce buzzwords/concepts is “leveling the playing field.”

What Is Leveling The Playing Field In An Illinois Divorce?

While the term doesn’t appear in the Illinois Marriage and Dissolution of Marriage Act, “Leveling The Playing Field” was the name for a portion of a statute change in 1997.

“On June 1, 1997, the legislature’s attempt to level the playing field for interim attorney fee awards in marriage dissolution cases went into effect. One new provision of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act), 750 ILCS 5/501(c-1)(3) (West 2000), empowers trial judges to allocate fees previously paid by a party to his or her lawyer for payment to the other party’s lawyer.” Stella v. Garcia, 339 Ill. App. 3d 610 (2003)

“This new interim fee system was 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

Therefore, an award of interim fees should put both spouses on the same litigation footing. Each spouse’s respective attorney should have similar financial resources. The playing field should be leveled.

Specifically, “leveling the playing field” applies only to interim attorney’s fees.

Interim And Prospective Attorney’s Fees And Leveling The Playing Field

“[I]nterim attorney’s fees and costs” means attorney’s fees and costs assessed from time to time while a case is pending, in favor of the petitioning party’s current counsel, for reasonable fees and costs either already incurred or to be incurred, and “interim award” means an award of interim attorney’s fees and costs.” 750 ILCS 5/501(c-1)

Interim fees are temporary in nature and are only allowed while an Illinois divorce is pending.

Interim fees can also be requested in a post-decree action like a modification of maintenance or parenting time post-divorce.

“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)

When an Illinois divorce court considers interim attorney’s fees they may consider the following factors:

“(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

All of these factors are fairly amorphous except for “(H) the amount of the payment or payments made or reasonably expected to be made to the attorney for the other party” which is a specific, ascertainable number. So, Illinois divorce courts often only look to that number in order to determine how to “level the playing field.”

In fact, Illinois divorce courts have little recourse but to look to that number because virtually all motions for interim and prospective fees are done with little to no testimony.

“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)

The only thing information required of the other party in an interim fee hearing is the attorney’s fees they’ve already been paid and the costs they’ve already incurred.

“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)

Illinois divorce judges look to these paid costs and expenses and simply use those as a proxy for what the amount the petitioning spouse needs to conduct their case properly. The judge then orders the spouse that paid more for their attorney to pay the other attorney the difference.

An Illinois divorce judge can go so far as to require one attorney to tender his remaining unearned retainer to the other attorney. “[A]dvance payment retainers in dissolution cases are subject to disgorgement.” In re Marriage of Earlywine, 996 NE 2d 642 – Ill: Supreme Court 2013

The Dangers Of Leveling The Playing Field

Leveling the playing field creates a lot of bad incentives for Illinois divorce attorneys.

Divorce attorneys for the non-monied spouse will take low retainers in the hopes of getting paid by the monied spouse in an interim fee hearing.

Divorce attorneys will tell their clients “pay me later” or, worse yet, “pay me in cash and we won’t disclose it” in order to avoid paying the other attorney’s interim fee under the level the playing field doctrine.

Catching an attorney lying about what they’ve been paid requires a paper trial that the attorney was, in fact, paid by the client before they claimed they were not. Even a lying attorney won’t be that stupid to allow a clean record of what was paid and how.

Rest assured that if you retain me, I will disclose everything required by law. I won’t lie to a court under any circumstances and any lawyer who does over a few thousand dollars will soon be lying to their own client.

Leveling The Playing Field When The Billing Amounts Are Different.

Equalizing the playing field is not fair if one party’s attorneys is doing the majority of the work: preparing proposed marital settlement agreements, proposed allocations of parenting time and parental responsibilities, etc.

An Illinois divorce can be reminded that “[N]othing in section 501(c-1)…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

In my experience, every action in court causes an equal and opposite reaction so fees should have a similar weight…and they almost always do.

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

Still, different firms seem to provide similar services for different amounts. Whether that’s due to the billing rate or billing practices, I cannot say. This is a very opaque business.

How Do Attorney’s Fees Finally Get Allocated In An Illinois Divorce

Interim fee awards are handled quickly and efficiently. “All hearings for or relating to interim attorney’s fees and costs under this subsection shall be scheduled expeditiously by the court.” 750 ILCS 5/501

The brevity of interim fee hearings make them prone to error. Those errors can be forgivable because at the end of the case attorney’s fees are considered in light of the entire context of the case.

Attorney’s fees by either party are a debt incurred in the course of a marriage and like any other marital debt, attorney’s fees owed must be divided.

“”[M]arital property” means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 503(a) (emphasis mine)

A Illinois divorce court “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503(d)

Specifically, right after the divorce trial is done, a separate hearing to divide the responsibility for attorney’s fees may be conducted.

“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 court shall balance the marital property awards and the maintenance awards with any further attorney’s fee awards. So, if you got the majority of the marital property or a healthy maintenance award, expect to pay your own fees…and your ex-spouse’s, too.

“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)

Illinois divorce judges will award the outstanding fees as either a lump sum judgment or a percentage of the total (I don’t see any difference if you can do basic math).

“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) to be subsequently agreed upon by the petitioning party and counsel or, alternatively, thereafter determined in a hearing.” 750 ILCS 5/503(j)(5)

What Happens If You Do Not Divide Attorney’s Fees In An Illinois Divorce

For some reason, outstanding attorneys’ fees are often overlooked in final settlements with each party happy to agree to pay their own attorney’s fees and costs without even inquiring as to what those are.

Those fees will have to be paid. In fact, the Illinois Marriage and Dissolution of Marriage Act allows divorce attorneys to sue their own former clients subsequent to divorce for their attorney’s fees. The statute provides “the right of any counsel (or former counsel) of record to petition a court for an award and judgment for final fees” 750 ILCS 5/508

Illinois judges are attorneys who used to petition the courts for their fees from their former clients. Who do you think those judges are going to empathize with in a petition for fees against their former client?

Dividing your assets and paying child support and maintenance are bad enough…but paying your ex’s lawyer for the privilege? That’s the worst. Contact my Chicago, Illinois family law firm to learn more about what attorney’s fees you are responsible for and what attorney’s fees you are not responsible for.

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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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