Can I Be Ordered to Pay My Spouse’s Attorney Fees During Divorce?

When parties are unable to agree to the terms of their divorce, litigation is required. Litigation can be costly and time-consuming with multiple court appearances and the discovery process.  Not everyone has the money to litigate, but that does not stop them.  It is possible to be ordered to pay your spouse’s attorney fees during divorce in Illinois.

Awards for Interim Fees and Costs During Divorce

What are “Interim Attorney’s Fees and Costs”?

Pursuant to Section 501 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/501 (c-1), interim attorney fees and costs are “assessed from time to time while a cause is pending, in favor of the petitioning party’s current counsel, for reasonable fees and costs either already incurred or to be incurred.”

What if My Spouse Files a Petition for Interim Attorney’s Fees Against Me?

If the other party files a Petition against you for spouse’s attorney fees during divorce, the Court will give you time to file a Response to the Petition. Be sure to pay close attention to the allegations your spouse stated in their Petition and in their supporting affidavit. In your Response, you will need to state the amounts you have previously paid to your attorney or the amounts paid to your attorney on your behalf by someone else. You will also need to state all the costs that have been incurred by your attorney and whether those costs have been paid in full or remain unpaid.

Filing a Response to the Petition for Interim Attorney’s Fees and Costs is very important because any later hearing regarding the Petition for Interim Attorney’s Fees will be non-evidentiary. This means that the Court will only look at the facts that are presented. Witnesses and exhibits will not come into play at this stage of the dissolution proceedings, so you need to be sure to give the Judge the facts that support your position in your Response.

I Filed My Response – Now What?

You can always try to negotiate an agreement relating to the Petition for spouse’s attorney fees during divorce. Negotiating an agreement with the opposing side is really your last chance to be in control, so to speak. If an agreement is not reached, then the Petition for Interim Attorney’s Fees and Costs will be set for hearing. At the hearing, the Judge will consider a number of relevant factors before deciding whether or not to award Interim Attorney’s Fees, and if so, in what amount.

What Factors Will the Court Consider in a Petition for Spouse’s Attorney Fees During Divorce?

The Court will consider all facts that they deem reasonable and necessary to make a decision regarding the Petition for Interim Attorney’s Fees and Costs. Section 501 of the IMDMA provides a list of factors that the Court considers if they are relevant to the case. Of course, the Court will look at the income of each party. The Court will consider the marital property of the parties and alleged non-marital property if the party has access to it. The Court will consider the ages of the parties, along with their physical and emotional health.

The Court will look at the facts of the case to determine how complex the issues between the parties are. How much time and money really needs to be spent in this case? Generally, the Court would much rather see hard-earned money going towards the college funds of the parties’ minor children than to litigation over issues that should be settled. Although the IMDMA gives a list of potential relevant factors, every case is unique, so remember to address all relevant facts even if not mentioned in the statute.

How Much Could I Be Ordered to Pay Towards My Spouse’s Attorney’s Fees?

If the Court decides to grant the Petition for Interim Attorney’s Fees and Costs, then the Court will assess the award in an amount that is necessary to enable the petitioning party the chance to participate in an adequate manner in the litigation. Of course, the Court must first determine that you have the ability to pay a reasonable amount towards your spouse’s attorney fees during divorce and the Court must determine that the petitioning party lacks sufficient access to income or assets to pay their own attorney’s fees at that time. Maybe they will be able to pay their own attorney’s fees once everything is settled if they walk away from the divorce with sufficient money and property.

An Interim Award is looked at as being temporary to get the parties through the dissolution process in a way that is equally fair to the parties.  Typically, an Interim Award to the petitioning party will not be less than the payments already made to the opposing party’s attorney or expected to be made to the opposing party’s attorney.

What Happens if Interim Attorney’s Fees are Awarded to My Spouse?

Try not to panic if you are ordered to pay the other parties’ attorney’s fees and costs because this will all be taken into consideration in the long run. Remember that these fees can be assessed from time to time during the proceedings. If an award for Interim Fees is entered against you and a year later your case is still not resolved, do not be surprised to see another Petition for Interim Attorney’s Fees and Costs filed in the matter.

An Interim Award is without prejudice to any final allocation and without prejudice as to any claim or right of either party or counsel of record at the time of the award. This is because Interim Awards are treated as advances from the parties’ marital estate. If it is determined that you paid too much towards the other party’s Attorney’s Fees by way of an Interim Award, that will be offset in the final allocation of the marital assets and debts.

Anderson and Boback are experienced divorce attorneys in Chicago, dedicated to protecting your rights and looking out for your best interest.  Contact us for a confidential consultation to learn more about your rights regarding your spouse’s attorney fees during divorce. 

Contact Nichol Broshous for questions about this topic.