There are quite a few variations of attorney’s fees in divorce cases and how those fees get paid during and after a divorce. Generally, there are Interim and Prospective Attorney’s Fees and Costs, contribution due to inability to pay (or if a spouse has a greater ability to pay) as well as contribution to attorney’s fees because someone was found in contempt of court. Additionally, attorney’s fees may be paid as a sanction for discovery violations or non-compliance, as well as a monetary sanction for an improper or untrue filing.
What Exactly are Interim and Prospective Attorney’s Fees?
Interim fees and prospective fees are fees one can obtain while a case is ongoing to “level the playing field”, so to speak. They are more commonly awarded in pre-decree dissolution of marriage actions, where there is a marital estate consisting of money and property that will be divided in the Court in a final dissolution order. This is because an interim and prospective attorney’s fee award is usually awarded to someone as a pre-distribution from their marital estate. It is, essentially, some of the money you will get in your divorce paid to you up front to help you with your attorney’s fees and costs.
Interim fees are fees that you may have paid your attorney already and are seeking reimbursement for, from your marital estate. They are generally awarded if one party has more control over the marital estate than the other, or in situations where the parties’ assets are frozen due to a court order. Generally, to receive interim fees the money has to exist somewhere in the state, and it cannot be in a 401(k) account. Under current law, a party cannot be ordered to draw down a 401(k) and incur taxes and penalties for same to provide another party with interim fees. However, if the money is sitting in a checking account, savings account, money market, etc. and is liquid, it is fair game for interim fees. Prospective fees are similar, but they are fees that the party expects to have to pay later during the divorce process. It serves as an additional retainer for that person. Parties may ask for interim fees, prospective fees, or both, during the pendency.
Who Pays Attorney’s Fees in Divorce in Illinois?
What if my Spouse or Ex has a greater ability to pay attorney’s fees than I do?
There is an area of the law in Illinois which provides that a party may receive a final award of contribution to attorney’s fees due to their inability to pay their own fees. These awards are sometimes called “508(a)” fees. These fees are not an advancement or pre-distribution from the marital estate, they are a final fee award awarded based upon someone having an inability to pay their fees, or one party having a greater ability to pay their and their ex’s fees.
Court-ordered Attorney’s Fees in Illinois
What if my Spouse or Ex Violates a Court Order?
There is a specific section under Illinois law which would require someone who is found in contempt of court to pay the other party’s fees. After all, had the person not violated the court order, there wouldn’t be a need for the non-violating party to go to court and incur fees, so this makes a lot of sense. However, for someone to be found in contempt, there has to be a willful violation of a court order. If the person has a reasonable explanation for why they violated the court order and they subsequently try to rectify it, or, if they rectify it prior to the court date on the contempt petition, they may not be found in contempt, and there may not be a fee award. However, in the event that there is a willful violation, the fees are essentially mandatory but are subject to whether or not they are reasonable. So, even if a person is found in contempt and the other person is entitled to fees, the Court still can determine what a reasonable amount of fees are for that person to pay.
So, What if I Want my Spouse to Pay my Attorney’s Fees?
Clients and potential clients ask regularly for their spouse to pay their attorney’s fees and costs. Despite the fact that this is a popular request, there are generally only two ways that your spouse would be ordered to pay or contribute to your attorney’s fees in an Illinois divorce proceeding.
The first scenario where it would be appropriate for the court to order your spouse to pay your attorney’s fees and costs is where your spouse has a greater ability to pay both your fees and their attorney’s fees than you do to pay your own fees and costs. Sometimes there is a large income discrepancy. Sometimes this occurs if only one party has access to assets within the marital estate. This happens in many different scenarios.
The second scenario occurs when your spouse willfully and without compelling cause or justification violates a court order. This might be relative to a discovery order that wasn’t followed, or even a visitation order is not being followed properly. You can also obtain attorney’s fees and costs for non-compliance with discovery, which also falls under the “violation of a court order” scenario.
Clients can also ask for a fee contribution hearing at the end of their divorce case. In this situation, the court will look at the fees incurred as well as the income and property awarded to each spouse and make a fee allocation. This type of hearing doesn’t happen until the end of a case.
Clients often ask for their spouses to pay their attorney’s fees and costs up front when they retain their attorneys, including their initial retainer. Unfortunately, an award of attorney’s fees is never guaranteed. If faced with divorce, you will quickly find you still need to pay a retainer up front to your lawyer and try to obtain the fees as a reimbursement to you later in the case.
Anderson & Boback are highly respected and skilled family law attorneys serving clients in the Chicago and surrounding counties. If you’re faced with divorce or family law related issues, contact us to schedule a confidential consultation and learn more about attorneys fees in divorce cases.