IICLE Family Law Flash Points - February 2016

1.         Earned retainer fees of $60,000 disgorged under the leveling of the playing field statute.  The Appellate Court affirmed a trial court’s decision concerning interim fee disgorgement in favor of the husband’s attorneys in the amount of $60,000 for fees earned and paid to wife’s attorneys.  Husband earned a six figure salary, had paid his attorneys $2,500 and owed $53,000 at the time of the hearing. The evidence showed he had a negative cash flow after the payment of marital expenses, which included significant debt.  Wife was unemployed but had borrowed $130,000 from her mother to pay her attorneys’ fees. Wife’s attorney took a “friendly contempt” to appeal the disgorgement. Among the claims of error was that the Supreme Court case of In re the Marriage of Earlywine, 2013 IL 114779 was not applicable because it only applied to advance payment retainers.  However, because Earlywine did not expressly limit its holding to only advance payment retainers the Court held that the funds need not be sitting in a client trust account in order to be “available” for disgorgement under the interim fee statute.  In re the Marriage of Squire, 2015 IL App (2d) 150271.

2.         Factor regarding ability and willingness to foster child’s relationship with the other parent tipped the scale in favor of father being named primary residential parent.  The Appellate Court upheld a trial court’s decision to name father as the primary residential parent primarily due to the evidence that showed mother systematically attempted to exclude the father from the child’s life.  Examples of this behavior included mother failing to name the father as a parent at the child’s daycare and enrolling the child in extracurricular activities during his parenting time without consulting him. The court reasoned that this was the only way to ensure active involvement of both parents in the child’s life.  In re the Marriage of Young, 2015 IL App (3d) 150553.

3.         Third District rejects the necessity of having to prove a spouse’s inability to pay as a prerequisite to a contribution award.  Wife’s former counsel sought contribution from husband after wife’s debt was discharged in bankruptcy.  The Court held that the trial court should consider the parties’ relative financial circumstances under the Section 503 and 504 factors; that this approach was more in line with the statutory goals than having to prove the client’s inability to pay first in order to proceed; and it better allows attorneys to recoup at a least a portion of their fees when a client declares bankruptcy.  There was a dissenting opinion which argued that the fact that wife had waived her right to a contribution hearing under the terms of the Marital Settlement Agreement and then had her debt discharged in bankruptcy precluded the contribution petition from moving forward.   In re the Marriage of Anderson, 2015 IL App (3d) 140257.