Divorce attorney’s fees can be expensive and is one of the most popular topics for questions we receive from new clients in our Chicago family law practice. Namely, Will I be able to afford to pay for a divorce? Can my spouse pay my bill for attorney’s fees?
There are Various Avenues in which Divorce Attorney’s Fees Can Be Paid
The Illinois statutes (IMDMA-Illinois Marriage and Dissolution of Marriage Act) cover different areas in which fees can be granted. There are interim attorney’s fees under IMDMA § 501(c-1) in a pre-judgment dissolution action, and under § 508(a), a person can seek fees if they cannot afford it but the other side can. There are also fees available under § 508(b), which is essentially a statute used in contempt actions or to penalize a party for unnecessary delays. Contribution to fees from the opposing party may be awarded in accordance with section 503(j) as well. Section 503(j), in turn, provides that an award of fees in response to a petition for contribution to fees and costs shall be based on the criteria for division of marital property set forth under section 503(d)(1)-(12). Id. § 503(j) (West 2018).
UNDER ILLINOIS LAW, THE PERSON WHO HIRES THE LAWYER IS RESPONSIBLE FOR THE LEGAL FEES
You sign the contract to hire your divorce lawyer, so you are responsible for your own legal bill. However, the court wants to make sure that both sides have access to fees to avoid an unfair advantage. If one side has money for an attorney and the other side does not have the money, then the courts are supposed to “level the playing field” so that there is no unfair advantage. To make the distribution equal between the parties, your lawyer will file a Petition for Interim Attorney’s Fees. Parties can file to have past and future attorney fees paid in part or in whole by the other party.
When do Illinois divorce courts grant petitions for interim attorney fees?
Illinois divorce courts will grant petitions for interim attorney fees in an amount reasonably necessary to allow a person to participate adequately in the litigation, but only if the person lacks sufficient access to assets or income to pay their fees and the other side has the financial ability to pay them. The goal is to avoid a situation in which one party has a financial advantage in divorce litigation.
How do interim attorney fee awards impact asset division in divorce?
Interim attorney fee awards are considered when determining the final division of assets and liabilities in the divorce. They act like a down payment toward the final division of property. The more that is awarded in interim attorney fees to one party, the less you are likely to receive when the assets in your case are divided. Each party’s attorney’s fees are considered dissipation and are equalized at the end of the case.
For a Party Held in Contempt or if a Party Unnecessarily Delays the Case, 508(b) Fees are Awarded
It is important to follow court orders. When there is a finding by the court that a party has not, they generally are required to pay the attorney fees for the other party. That is the purpose of 508(b) fees. If you need to hire an attorney to force compliance, you should not have to pay the attorney to get that relief. It is important however to make sure you seek the appropriate fees under the correct statute and in the Case of Budorick when the court fails to list the statute, it is imperative that you require a ruling from the court about the statute you were awarded fees under to avoid having the appellate court reverse your award.
In Budorick, 2020 IL App (1st) 190994, the trial court and the appellate court wrote about the husband’s legal maneuvering that led to excessive delays in the divorce litigation. At one point, the husband filed suits in federal court, which also delayed the trial court’s divorce trial. The federal court eventually sanctioned Mr. Budorick, but that did stop him. Days before his divorce trial was to begin, he filed bankruptcy, and that led to another delay. Delays lasted over four years and after four continuances, the divorce trial finally began and the trial court granted the divorce.
The wife filed her petition for fees over the delays and the judge granted the wife $50,000 in fees. It is important to note that under 508(b) it does not matter if the other party can afford them or not. When the court ruled on the fees, there was no indication as to which statute the fees were awarded under. The wife could have received attorney fees under 508(b), but she expressly denied bringing her fee petition under subsection 508(b) of the Act, and the court did not award fees under subsection 508(a) because it explicitly stated that the award was “not based on the ability of the parties to pay.” The court’s ruling stated that the fees were not based on either subsection 508(a) or subsection 508(b) of the Act.
It is hard to fathom then just what statute the court used then, and because the order was not clear, the appellate court concluded that the court abused its discretion in ordering the husband to contribute $50,000 to his wife’s legal expenses. That part of the trial court’s order was reversed.
There are many Illinois laws available to litigants to receive attorney’s fees. By working with an experienced Chicago divorce attorney, you will review the differences to see which statute best applies to your situation.