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Who Pays the Attorneys’ Fees?

attorney fees, Kane County divorce attorneyMany people have a mental image of divorce proceedings that includes a richer spouse being able to run roughshod over a spouse with fewer resources. This, however, is not usually the case, at least not in Illinois. Decisions from the last several years have redefined the idea of fairness in Illinois divorces, and nowhere is this more relevant than in the question of who pays whose attorney fees. The standard in divorce cases is changing.

“Leveling the Playing Field”

Illinois law does not mandate that one spouse must pay the other’s attorney fees. However, in the interest of public policy—meaning in promoting the common good—a court can order that the richer spouse assist the poorer with any required fees or court costs. This is often referred to as “leveling the playing field,” based on the idea that both spouses should begin a divorce proceeding on as close to equal footing as possible.

This power even extends to fees that have already been paid. For example, in In re Marriage of Earlywine, a case from 2013, the Illinois Supreme Court held that a husband, who had already paid his attorney $8,750 (having made the case that the attorney had already earned it), had to request some of it back in order to help the wife to pay her attorney’s fees. Without such contribution, the wife would not have been able to retain her attorney, a situation that is generally frowned upon by Illinois courts.

Attorney Fees as Sanctions or Punishment

The other situation in which a person might be ordered to pay their spouse’s attorney fees is if the person violates a court order or directive without justification. Section 508(b) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) states unequivocally that if a party must be ordered back to court in order to enforce an order, the court “shall” order the party in violation of the order to pay any costs associated with bringing it.

In rare cases, attorney fees may be awarded as sanctions, which are specific penalties for bad behavior on the part of one spouse. For example, in In re Marriage of Johnson from 2011, the former husband was awarded sanctions against his ex-wife, who had repeatedly filed suit to overturn their judgment of divorce based on a spurious statement that the husband had lied. The husband’s motion for summary judgment was granted, as was his motion for sanctions against his former wife in the form of her payment of his attorney’s fees.

Contact an Experienced Divorce Lawyer

Divorces are difficult and complex to begin with, but adding financial worries to the mix can be more than many people can handle. Having a knowledgeable divorce attorney on your side can make a dramatic difference. The dedicated St. Charles divorce lawyers at Bochte, Kuzniar & Navigato, P.C. are well versed these types of cases, and we are happy to help you with yours. Contact our office today to discuss your options.

 

Sources:

http://www.illinoiscourts.gov/Opinions/SupremeCourt/2013/114779.pdf

http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=075000050K508

http://www.illinoiscourts.gov/opinions/AppellateCourt/2011/1stDistrict/December/1102826.pdf

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