Posted on November 12, 2022

Prenuptial Agreements And Attorney’s Fees In Illinois

Prenuptial agreements are generally drafted by the spouse who has the money. The spouse with the most assets and income will prepare a prenuptial agreement which will attempt to preserve as much of those assets and income as possible.

When preparing a prenuptial agreement, a divorce attorney will include clauses which benefit their client if the parties do, if fact, divorce. Including a clause that can limit or eliminate any contribution of attorney’s fees from one party to the other during the course of divorce litigation will clearly limit the other party’s ability to contest the prenuptial agreement and prosecute their own interests in the divorce.

How can prenuptial agreements limit attorney fee awards in an Illinois divorce?

Attorney Fees In An Illinois Divorce

Illinois divorce courts routinely award attorney’s fees to either party during the course of an Illinois divorce.

“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)

Specifically, interim attorney’s fees are the fees which empower a non-monied spouse to prosecute the divorce sufficiently to represent the non-monied spouse’s interests.

“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

“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)

“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)

Interim attorney fees are commonly granted in the initial stages of an Illinois divorce for the purpose of allowing the subsequent steps of an Illinois divorce to proceed properly.

Prenuptial And Postnuptial Agreements In Illinois

People can contract for almost anything. Married people can contract amongst themselves to determine the terms of their marriage or eventual divorce.

“[Marital] agreements are contracts” In re Marriage of Best, 859 NE 2d 173 – Ill: Appellate Court, 2nd Dist. 2006

“If the parties decide to settle their property rights by mutual agreement rather than by statute, they are bound to the terms of their agreement.” In re Marriage of McLauchlan, 2012 IL App (1st) 102114

The parties to a potential divorce can include almost anything in an agreement. The only limitations to an agreement between married people are issues which should be determined by the best interests of the children (child support and parenting time).

“The terms of the agreement, except those providing for the support and parental responsibility allocation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the agreement is unconscionable.” 750 ILCS 5/502(b)

Therefore, a prenuptial agreement can include language that governs who will pay for what attorney’s fees in a possible future divorce action.

Can A Prenuptial Agreement Limit Attorney’s Fees In An Illinois Divorce

If there is a prenuptial or postnuptial agreement which attempts to contract away this right to interim fees, an Illinois divorce court must balance the terms of the agreement with the statutory right to interim attorney’s fees.

An Illinois divorce court has great leeway in applying the terms of the Illinois Marriage and Dissolution of Marriage Act.

“This Act shall be liberally construed and applied to promote its underlying purposes, which are to:

…to achieve substantial parity in parties’ access to funds for pre-judgment litigation costs in an action for dissolution of marriage or legal separation” 750 ILCS 5/102(8)

Expect an Illinois divorce court to use this flexibility to award attorney’s fees despite a prenuptial agreements prohibition. To deny an award of interim attorney fees “would ignore the clear policy…to “level the playing field” and give [the monied spouse] an unfair advantage.” Marriage of Rosenbaum-Golden and Golden, 884 NE 2d 1272 – Ill: Appellate Court, 1st Dist., 4th Div. 2008

The Illinois statute authorizing interim fees, 750 ILCS 5/501(c-1) specifically states that “interim awards…shall be deemed to have been advances from the parties’ marital estate.” 750 ILCS 5/501(c-1)(2)

So, unless the spouse requesting interim was awarded NOTHING in the prenuptial agreement (which would probably make the agreement unconscionable), interim fees shall be awarded as an advance against what the spouse will receive in the final outcome of the divorce.

“Strong policy considerations underlie our decision that [a] premarital agreement does not constitute a waiver of interim attorney fees, which are an advance against the marital estate” Marriage of Rosenbaum-Golden and Golden, 884 NE 2d 1272 – Ill: Appellate Court, 1st Dist., 4th Div. 2008

In conclusion, In Illinois, a prenuptial agreement may screw over one spouse substantively but a prenuptial agreement may not screw over one spouse procedurally.

If you have a prenuptial agreement, postnuptial agreement or any piece of paper that discusses future attorney’s fees, you need to talk to an experienced Illinois divorce attorney now. Contact me to discuss what you are really entitled to in an Illinois divorce…no matter what you have agreed to.

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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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