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When you can collect attorney’s fees

Categorized as Illinois Divorce

Sometimes divorce proceedings can get drawn out do to discovery, motion practice, and other strategic maneuvers. Oftentimes, this requires a party to incur attorney’s fees for an issue the other party is pursuing. As a result, a question I am often asked is, can the court order my spouse to pay my attorney’s fees? Like most family law issues, the answer to this question depends on the circumstances of your case.

The general rule is that a party is not entitled to attorney’s fees from the opposing party unless a statute or rule allows the party to collect attorney’s fees. In family law cases, there are only a few situations where you may be entitled to collect attorney’s fees from your spouse. The first is pursuant to Section 508(a) of the Illinois Marriage and Dissolution of Marriage Act. This section allows a party to request attorney’s fees from their spouse while their case is ongoing in connection with the maintenance or defense of the proceeding, the enforcement or medication of an order, the defense of an appeal of any order, and the costs and legal services of an attorney rendered in preparation for the commencement of a proceeding. However, fees will only be awarded under this Section after the court considers several factors, including the income and property of each party, the needs of each party, the parties’ earning capacities, any impairment to their earning capacities, the degree of complexity of the issues in the case, and other relevant factors.

The second is pursuant to 508(b) of the Illinois Marriage and Dissolution of Marriage Act. Pursuant to this Section, a party may request attorney’s fees from their spouse only if the spouse has failed to comply with an order or judgment. In this scenario, the party will petition the court to issue a rule to show cause why the other party is not complying with the order. If the Court finds that the party failed to comply with the order and that there was no compelling cause or justification as to why, the Court may require the non-compliant party to pay the other party’s attorney’s fees incurred in making the party comply with the order.

Finally, Supreme Court Rule 219 provides that, if a party fails to comply with a discovery request or any order with respect to a discovery request, the party can request attorney’s fees. In this scenario, the party would file a motion to compel the non-compliant party to comply with the discovery request or discovery order. If it is found that the party failed to comply with the discovery request or the discovery order and that the refusal to comply was without substantial justification, the Court may require the non-complaint party to pay the other party’s attorney’s fees incurred in making the party comply with the discovery. Although these rules allow a party to request attorney’s fees from their spouse, it is important to remember that these do not guarantee you will collect fees. Under all of these provisions, the Court must find your fees are fair, reasonable, and necessary before awarding fees.

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