Posted on January 6, 2024

Settling An Illinois Divorce Case Without A Lawyer’s Consent

Divorce lawyers are there to advise their clients. A lawyer should kindly walk their client through the divorce case with strong opinions about what the client should do. In the end, the decision to settle the divorce belongs to the client.

“[A] client has “an absolute right” to settle her case without her attorney’s consent.” Heiden v. Ottinger, 245 Ill. App. 3d 612, 616 (Ill. App. Ct. 1993)

Furthermore, a lawyer must allow their client to settle a matter if the client wishes.

“A lawyer shall abide by a client’s decision whether to settle a matter.” Ill. Sup. Ct. R. 1.2(a)

The problem is that is takes two sides to communicate and agree to settle a matter. If one of the parties has a lawyer who is resistant to settling, the other side’s lawyer cannot independently contact the party to settle without their lawyer present.

“In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” Ill. Sup. Ct. R. 4.2

The other side cannot communicate with an opposing party until their lawyer has been discharged.

While a party has “the right of the client to terminate the relationship with or without cause” Balla v. Gambro, Inc., 145 Ill. 2d 492, 500 (Ill. 1991)

However, an attorney cannot really stop representing their client until a court formally allows the attorney to withdraw.

“[A]n attorney may not withdraw his or her appearance for a party without leave of court.” Ill. Sup. Ct. R. 13

Typically, the parties will have to wait a week or so for the lawyer who is objecting to the agreement to formally withdraw.

Why Would An Illinois Lawyer Prevent Settlement Of An Illinois Divorce Case?

Clients often want a divorce case to be over more than they want a fair settlement.

Divorce lawyers can counsel clients that almost everything in a final Illinois divorce agreement except for property distribution is modifiable in the future. So, maybe a settlement now is not the end of the world as other matters such as support and parenting time can be dealt with in the future.

Some divorce settlements are simply so bad, that a divorce lawyer will want no part of that settlement. The divorce lawyer will withdraw before being associated with that settlement.

Other divorce lawyers will have the client sign an acknowledgement that the settlement is being agreed and entered against the lawyer’s advice.

If a divorce lawyer cannot convince their own client to do something that is in their own best interest…I don’t know if they are a very good lawyer.

Why Do People Enter Into Settlement Without Their Divorce Lawyer?

In my experience, parties to a divorce try to exclude their own divorce lawyers from settlement because they do not want to memorialize that their own lawyer has become a creditor. If the divorce lawyer is owed money, the divorce lawyer is often paid out of the liquidation of the marital estate.

In a fit of being clever-by-half, a divorce lawyer’s client may decide that he or she would prefer to enter into an agreement without their divorce lawyer getting paid. This is asinine and pointless.

A divorce lawyer can still sue their own client for their attorney’s fees even if the divorce lawyer was not awarded attorney’s fees in the final Marital Settlement Agreement.

“Final hearings for attorney’s fees and costs against an attorney’s own client, pursuant to a Petition for Setting Final Fees and Costs of either a counsel or a client, shall be governed by the following:

Any amount awarded by the court must be found to be fair compensation for the services, pursuant to the contract, that the court finds were reasonable and necessary. Quantum meruit principles shall govern any award for legal services performed that is not based on the terms of the written engagement agreement (except that, if a court expressly finds in a particular case that aggregate billings to a client were unconscionably excessive, the court in its discretion may reduce the award otherwise determined appropriate or deny fees altogether).” 750 ILCS 5/508(c)

How Can An Illinois Divorce Lawyer Pursue The Opposing Party For Contribution To Attorney’s Fees After They Have Ceased Representing Their Client?

A divorce lawyer can still sue the ex-spouse of their client even if they have a deal to be responsible for their own fees.

“[A] marital settlement agreement which purports to allocate attorney fees will not, as a general rule, extinguish the statutory right of a spouse’s prior attorney to pursue an award of fees from the other spouse.” Lee v. Lee, 707 NE 2d 67 – Ill: Appellate Court, 1st Dist., 5th Div. 1998

The divorce attorney’s claim for their attorney’s fees is completely separate from the claims the parties have against each other. Therefore, the client cannot waive the divorce attorney’s right to ask that their fees be paid by the other side.

“[W]e reject [the]interpretation that a former attorney is bound by a settlement agreement entered prior to his or her petition for final fees where the former attorney was not a party and in no way consented to that agreement. We do not read section 503(j) to mean that a former attorney is bound by a client’s subsequent agreement with other parties with respect to the former attorney’s fees….In sum, and as previously mentioned, attorney fees, while awarded to the client, actually belong to the attorney.  While a party may settle his or her claims, a party cannot waive something that belongs to someone else.” IN RE ROCCA, 946 NE 2d 1003 – Ill: Appellate Court, 2nd Dist. 2011

Fees owed to an attorney do stop when the attorney-client relationship is severed. An attorney cannot be awarded fees for actions taken after the client has dismissed the attorney’s services.

“[O]nce the attorney has been discharged or has withdrawn and where, as here, the parties have settled the underlying parentage action and the former client has new counsel, the former counsel’s subsequent pursuit of fees and contribution for work done after the relationship has ended cannot be deemed to be on the client’s behalf [and therefore fees will not be awarded for work after such a time]” In re Rocca, 1 NE 3d 1281 – Ill: Appellate Court, 2nd Dist. 2013

When a divorce attorney “is seeking contribution from….the opposing party, for attorney fees incurred as [their client’s counsel] counsel during the pre-decree dissolution proceeding. …section 503(j) rather than section 508(c) applies to his petition.” In re Marriage of Cozzi-DiGiovanni, 14 NE 3d 729 – Ill: Appellate Court, 1st Dist., 5th Div. 2014

The 503(j) standard of awarding fees from a party to an opposing counsel is completely different than the 508(c) standard of awarding fees from a party to their own counsel.

503(j) awards attorney’s fees based on who got what in the divorce.

“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, in accordance with the following provisions: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)

A party who is awarded assets and maintenance can probably pay their own fees…and then it’s back to the generous (to the lawyer) 508(c) standard.

The 503(j) even contemplates that the parties will largely be responsible for their own fees.

No finding on which a contribution award is based or denied shall be asserted against counsel or former counsel for purposes of any hearing under subsection (c) or (e) of Section 508.” 750 ILCS 5/503(j)(4)

Contrast 503(j)’s search for a fair fee award based on the totality of the final award of assets and support with 508(c)’s standard: that the divorce lawyer gets paid so long as the fees were “fair compensation for the services.”

“Any amount awarded by the court must be found to be fair compensation for the services” 750 ILCS 5/508(c)

Actually, Illinois courts can do whatever they want regarding divorce attorney’s fees. Illinois courts can award set dollar amounts, percentages of costs or apply 508(c)

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 pursuant to subsection (c) of Section 508 or previously or thereafter determined in an independent proceeding under subsection (e) of Section 508.” 750 ILCS 5/503(j)(5)

You might be done with your divorce lawyer, but your divorce lawyer is not done with you. Your divorce lawyer needs to get paid by someone in the case and it will most likely be you.

To learn more about how to get the best result for you and a fair compensation for your lawyer, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.

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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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