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The other party is causing this litigation to drag on – Can they pay my attorney’s fees?

Categorized as Divorce Litigation

There are many different reasons why a person might be forced to pay the other party’s attorney’s fees and costs during a domestic relations proceeding. First, if it is a divorce and it is pre-decree, and the other party has greater (or all) access to the marital estate, they may be forced to pay the other party’s attorney’s fees and costs, as an advancement from the marital estate. These fees would be awarded from the estate, subject to a later distribution.

Another way fees are awarded in domestic relations proceedings is based upon the parties’ respective ability to pay. If one party has more assets and/or income, and a greater ability to pay fees than does the other party, they may be forced to contribute to the other party’s fees.

If a party in a domestic relations proceeding fails to comply with a court order, and they are taken to court as a result, that person who violated the order may have to pay fees to the person taking them to Court. These fees are mandatory with the non-compliance is willful and without compelling cause or justification, and in that scenario, they are mandatory.

Finally, attorney’s fees can be awarded as a sanction under relevant Illinois Supreme Court Rules, for needlessly increasing the cost of litigation. However, this is found in rare circumstances. Simply causing a case to go on and on due to negotiations likely wouldn’t be enough for this sort of sanction, because it is hard to show that same is being done in bad faith. Everyone has a right to take a position and defend it in the legal system. However, failure to show up to court so that the other party has to pay their attorney to do so, or failure to follow proper rules and procedures in regards to hearings, motion filing, etc. can be sanctionable, as an example. Also, non-compliance with discovery is sanctionable and attorney’s fees and costs may have to be paid to the other side for violations. There are many sanctions available for discovery issues, but attorney’s fees and costs are one of them.

There are many different reasons why one party would have to pay another party’s fees, however, it is purely circumstantial. It is more likely that a party would receive attorney’s fees and costs based upon inability to pay or a contempt issue than it is just because someone decides to litigate rather than settling a matter.

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