Paying Your Divorce Attorney's Fees
What can you do when you need to hire an attorney but can't afford the retainer because your spouse earns all the family income or holds the purse strings? You should make an appointment to talk with an attorney anyway. Illinois law views marriage not just as a personal relationship, but also as a financial partnership.1 The attorneys' fees incurred by both spouses should, in most circumstances, be paid for by the marriage, regardless of who earns or manages the family's money. In fact, Illinois law2 regarding payment of attorneys in divorce cases (known as the "leveling the playing field" law) effectively puts both spouses on equal financial footing. Payments made by the parties to their respective counsel prior to, and during, the case are usually considered advances from their respective shares of the marital estate.3
If your case goes to trial, your attorney will have the opportunity to have the court divide fees fairly between both spouses as part of the court's Judgment. This can be done at the end of the case. The court does not have the power to sell a marital asset to pay the attorneys.4
Enforcement Proceedings: If you have to take your spouse back to court to force him or her to live up to the terms of your judgment or an agreement, Illinois law5 sometimes requires—that's right—REQUIRES your spouse to reimburse you for all of the attorneys' fees and court costs you incur. The law does not apply to all situations, but a good attorney should be able to tell you whether your case will qualify for a reimbursement of all or part of your fees.6
Interim Fee Awards During the Case: Illinois law7 permits your lawyer to go to court periodically to ask the judge to make your spouse pay your attorneys' fees. The law prevents a party from using his or her wealth as a litigation tool. It is for this reason that the law is referred to as the "Leveling the Playing Field" law.8
Interim fee awards may be allowed in paternity cases as well.9 There are, however, some aspects of the "Leveling the Playing Field" law that apply only to divorce court10 and that may make paying for a paternity case a little more difficult.
Contribution - At the End of the Case: If your case doesn't settle and you have to go to trial, Illinois law11 gives the judge the power to force your spouse to reimburse to you, or to pay directly to your attorney, some or all of your attorneys' fees and court costs. Even if your case DOES settle, the attorneys may still have the opportunity to ask the court to determine who should pay the attorneys’ fees.12 This happens at the end of the trial - "after proofs have closed in the final hearing on all other issues between the parties... and before judgment is entered."13 If you're considering this strategy, you really should work with a seasoned and skilled attorney. In a recent case, a man (earning a little more than $1,000 a month) who had liquidated his retirement to pay his own attorneys $24,000 and his wife's attorney $5,000 was order to pay her attorneys an additional $10,000 because he failed to satisfy a few technical requirements.14 The wife, incidentally, also received the house in the divorce.
Contribution hearings can be complex, tedious, and difficult, but they don't have to be. In fact, the judge doesn't even have to hold a hearing, but may allow an award in his or her discretion.15 You should work with an attorney who knows the law and the court system, though, because even the filing and timing requirements vary between appellate districts.16
Final Fee Awards: After your case is done, if you still owe money to your attorney (most attorneys don't let this happen) the court can enter a Judgment resolving the matter - it will determine how much you owe if there is a dispute.17 There are time limits within which this cannot happen until after you and your attorney seek (or waive) a contribution to your payments from your spouse (see "contribution," above).
Appeals: If you decide you want to appeal some part of your case but can't afford the costs of an appeal, talk with one of our lawyers. Illinois law permits the trial court to force your spouse to pay for some or all of your appellate costs - including attorneys' fees.18
Malpractice: Sometimes people who have been through a very difficult divorce want to sue their attorney for malpractice. Be careful before you start down that path. In some situations, your own actions in the divorce case may prevent you from bringing such a suit19 and unless the action is brought timely, you may be forever barred from raising the issue of malpractice. Be sure to work closely with a knowledgeable attorney.