During and after divorce proceedings an attorney can request attorney’s fees from the opposing party, his own client or both parties. An attorney’s time and expertise as an attorney will be compensated via court order. But what about the attorney driving to the courthouse? Can expenses for travel time be ordered by an Illinois divorce court?
Reasonable Attorney’s Fees And Divorce In Illinois
An Illinois divorce court has great powers to award fees for almost any reason. However, the ordered attorney’s fees must be “reasonable.”
“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. 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)(emphasis mine)
An Illinois divorce court need not even hear the details of every moment of billable attorney time. A court can here just here an argument and review invoices.
“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… 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.” 750 ILCS 5/501(c-1)(1)
Any temporary award of attorney’s fees must only pay for “reasonable fees” An order “in favor of the petitioning party’s current counsel, [must be] for reasonable fees and costs either already incurred or to be incurred” 750 ILCS 5/501(c-1)(emphasis mine)
If there was some kind of bad behavior on the part of one party, the court must award attorney’s fees to the other party. Even these mandatory awards only cover “reasonable attorney’s fees”
“In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without compelling cause or justification, the court shall order the party against whom the proceeding is brought to pay promptly the costs and reasonable attorney’s fees of the prevailing party… If at any time a court finds that a hearing under this Act was precipitated or conducted for any improper purpose, the court shall allocate fees and costs of all parties for the hearing to the party or counsel found to have acted improperly. Improper purposes include, but are not limited to, harassment, unnecessary delay, or other acts needlessly increasing the cost of litigation.” 750 ILCS 5/508(b)(emphasis mine)
At the end of a divorce, the remaining attorney’s fees owed may be ordered paid by either or both parties. Oddly, there is no explicit requirement for reasonableness of these jointly liable fees.
“After proofs have closed in the final hearing on all other issues between the parties…a party’s petition for contribution to fees and costs incurred in the proceeding shall be heard and decided” 750 ILCS 5/503(j)
And, finally, an Illinois divorce attorney may sue their own clients for unpaid attorney’s fees.
“Final hearings for attorney’s fees and costs against an attorney’s own client [are permitted]” 750 ILCS 5/508(c)
Courts have much more statutory direction in determining the reasonableness attorney’s fees of in actions of attorneys against their own clients. Reasonableness is still a requirement, however.
“The determination of reasonable attorney’s fees and costs either under this subsection (c)… is within the sound discretion of the trial court. The court shall first consider the written engagement agreement and, if the court finds that the former client and the filing counsel, pursuant to their written engagement agreement, entered into a contract which meets applicable requirements of court rules and addresses all material terms, then the contract shall be enforceable in accordance with its terms, subject to the further requirements of this subdivision (c)(3). Before ordering enforcement, however, the court shall consider the performance pursuant to the contract. 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 5/503(c-3)(emphasis and mine)
In determining reasonable attorney fees, Illinois courts conduct a multifactor analysis. Relevant factors include “the skill and standing of the attorney, the nature of the case, the novelty and difficulty of the question at issue, the amount and importance of the subject matter, the degree of responsibility, the usual and customary charges and the benefits to the client.” Kieken v. City of Joliet, No. 3-22-0392, 9 (Ill. App. Ct. 2023)(citations omitted)
Courts decide what’s reasonable NOT the attorneys asking to get paid.
“The trial court may and should rely on its own knowledge and experience when determining the reasonableness of the fees sought.” McHenry Savings Bank v. Autoworks of Wauconda, Inc., 399 Ill. App. 3d 104, 113 (2010).
“The circuit court is not bound by the petitioning attorney’s opinion as to what constitutes a reasonable fee and may use its own knowledge and experience to make that determination.” Kieken v. City of Joliet, No. 3-22-0392, 11 (Ill. App. Ct. 2023)
Travel Time And Attorney’s Fees In An Illinois Divorce
A petition for attorney’s fees should include what the client was billed for, exactly.
A “petition for fees must specify the services performed, the attorney who performed the services, the time expended, and the hourly rate charged.” Kroot v. Chan, 2017 IL App (1st) 162315, ¶ 37.
Fees billed for travel are often objected to as being unreasonable.
“[L]awyers normally charge for their travel time. That time is taken away from professional work, and thus involves an opportunity cost which is approximated by the lawyer’s normal billing rate multiplied by the time spent in travel.” Matter of Pine, 705 F.2d 936, 938 (7th Cir. 1983)(cited in Illinois state court by Jones v. Brandt Construction Co., 2022 IL App (3d) 210389- U, ¶ 29)
Lawyers can be awarded fees for preparing for and attending a matter. Rosen v. The Larkin Center, Inc., 2012 IL App (2d) 120589. Wouldn’t this include travel time?
Is it unreasonable for a lawyer to travel to a court when the court has ordered him or her to do so?
“An appropriate attorney fee consists of reasonable charges for reasonable services…The fees allowed should compensate for the services rendered and be fair to both the attorney seeking them and the party required to pay them.” ” In re Marriage of Patel & Sines Patel, 2013 IL App (1st) 112571, ¶ 103”
Not all attorney travel time is justifiable, however. If you hire an attorney who is way out of the area and bills for travel, a court may not award fees for that travel when there are equivalently proficient attorneys available closer to the court house.
“[A]dditional attorney fees incurred by [a party] due to the travel time of his chosen attorney beyond that generally incurred by attorneys in the area of the court proceeding was not a reasonable expense” Losurdo Bros. v. Arkin Distributing Co., 125 Ill. App. 3d 267, 275-76 (Ill. App. Ct. 1984)
Of course, all of the above applies to attorney’s fees when there is no contract between the attorney and the party. For final fee petitions by an attorney against his own client, the court should look to see if the client agreed to pay for travel time.
“[I]f the court finds that the former client and the filing counsel, pursuant to their written engagement agreement, entered into a contract which meets applicable requirements of court rules and addresses all material terms, then the contract shall be enforceable in accordance with its terms” 750 ILCS 5/508(c-3)
My engagement agreement includes a clause for travel time and a promise that we will do everything possible to conduct the case via Zoom. That includes filing a petition to conduct all court dates via Zoom under Illinois Supreme Court Rule 45(c)
“Case participants shall be permitted to attend court via the circuit court’s available remote appearance technology without any advance approval” Ill. S. Ct. R. 45(c)
Still, the courts can require lawyers to attend some court dates in person and, thus, require travel and travel expenses.
Zoom may not be required for “the following proceeding types, which shall require the approval of the judge presiding over the matter:
(i) Evidentiary hearings, except for ex parte evidentiary hearings (such as emergency
orders of protection hearings);
(ii) Settlement conferences;
(iii) Bench trials;
(iv) Jury trials” Ill. S. Ct. R. 45(c)
Recently our firm was awarded attorney’s EXCEPT for 40 minutes of travel time (over the course of an entire case). The judge said “I don’t award fees for travel time. It doesn’t take that long to get here from your office.”
My plucky associate countered, “None of us go to the office. We all work remote. The only reason we had to travel here is because you ordered us to.”
The judge smiled and said, “Well, that’s my order.”
If you are an attorney, I hope you get better results getting attorney’s fees for your travel time.
If you are not an attorney, pay the travel expenses. You always pay more when a professional has to travel for you, ex: car detailers, tutors, caterers.
To learn more about Illinois’ myriad rules of attorney’s fees, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.
