Publication

Pay My Spouse's Fees?

By Celia G. Gamrath  (read bio)
cgamrath@sdflaw.com

The divorce-related attorney fees statute is a “pro-consumer” act aimed at “leveling the playing field” between spouses so that a needy husband/wife can seek fees against the other spouse and obtain legal representation.

There is a presumption that attorney fees will be paid as an advance from the parties’ marital estate, with the caveat that, if you are the sole income-earner of the family and have a greater potential for acquisition of income and property in the future, it is likely the court will order you to pay a greater share of the overall fees. Where both spouses are equally wealthy or have the ability to pay their lawyers, each will be required to pay his/her own fees.

The allocation of divorce fees is premised upon equitable division of property principles and the same factors that go into an award of maintenance for a dependent spouse. This basic principle on fees extends to post-decree litigation between spouses, including post-divorce custody, support and maintenance issues, as well as appeals. The goal is to put spouses in parity for the payment of fees, which makes perfect sense when it comes to pre-decree litigation.

In post-decree matters and appeals, however, the wealthy spouse often complains loudly that the statute is unfair in requiring him/her to pay attorney fees for his/her ex-spouse.

Complaints are more deafening in paternity cases where the parties never married and have no marital estate.

The judge has discretion in awarding fees; during the case and/or at the end of the case the judge can award a spouse fees even without conducting a hearing. Interim fees are awarded routinely in all types of cases (not just pre-decree) on a summary, non-evidentiary basis. This is problematic in non-pre-decree cases, such as post-judgment, parentage and appeals, where no marital estate exists from which to advance fees, and where there is no ability to correct an overpayment of fees at the end of the case.

This concern prompted Gov. Patrick Quinn to sign into law new legislation (Public Act 96-583) that will likely lead to more hearings on interim fees and greater judicial supervision in non-pre-decree cases.

The new law takes effect on Jan. 1, 2010, and makes four major changes to the current law on fees in divorce cases.

First, it limits the presumption of summary hearings to pre-decree cases. When appropriate, the court may still conduct a summary proceeding or accept a stipulation in post-decree and other types of cases where there is no marital estate; however, there is no longer a presumption in favor of a summary, non-evidentiary hearing in those cases. This gives wealthy litigants less room to complain about the perceived unfairness of awarding interim fees on a summary basis without the opportunity to be heard.

Second, Public Act 96-583 expands the award of attorney fees for hearings driven by improper purposes, such as harassment or abuse. Under the current statute, a court may award fees and costs for a hearing “under this section” to a litigant if it finds that the other party precipitated or conducted the hearing for any improper purpose.

Use of the word “section” has created a misconception that fees and costs may be awarded only if a fee hearing is precipitated or conducted for any improper purpose. Public Act 96-583 changes “section” to “act,” making it clear that fees may be awarded for all hearings (not just fee hearings) that are conducted or precipitated for any improper purpose under the divorce act.

Notably, in Illinois the allocation of legal costs of divorce may be influenced by the fact that a party engaged in unnecessary, wasteful and harassing legal pursuits. Therefore, even if you believe that you will be awarded attorney fees because your spouse or ex-spouse is wealthy and has the ability to pay your fees and you do not, you should exercise caution in incurring the fees because you will not get fees for overly litigious antics.

Third, Public Act 96-583 eliminates the need for counsel to add billing statements into the public record when entering into a consent judgment with a client.

This existing requirement is unnecessary and overly intrusive.

Fourth, the new law resolves a conflict among appellate districts by clarifying the deadline for filing fee petitions at the end of a case. In pre-decree cases, a contribution petition for final fees must be filed no later than 30 days after the close of proofs and shall be heard and decided before final judgment. In all other cases (post-decree, parentage and appeals), a contribution petition must be filed within 30 days after the date on which the judgment is entered. This is a codification of the Illinois Supreme Court’s recent pronouncement in the case of In re Marriage of Blum v. Koster, No. 105795, Ill. Oct. 8, 2009.

Public Act 96-583 does not make sweeping changes but helps remedy the unintended consequences of the current law.

The Legislative Study Committee on Family Law, on which I serve as a member, has reviewed this new law and is in the process of making recommendations to update and improve the entire divorce act. Stay tuned.

Published by Chicago Lawyer  (November 2009)