Divorce is expensive…and you have to pay up front. Divorce attorneys require a retainer to begin work on a divorce case. That retainer is usually an estimate of how much the entire divorce will cost up to the point where the divorce case is resolved or more money becomes available to pay for the next stages of the divorce.
Unfortunately, not everyone has the money immediately available to hire a divorce lawyer for their Illinois divorce. The inability to pay a divorce attorney’s retainer is not always due to the inability to afford the divorce attorney’s retainer. Some spouses have no access or control of the family’s money and are, therefore, unable to use the family’s money to retain a divorce attorney.
After a spouse has been served with a summons for an Illinois divorce that spouse will read in bold letters “YOU ARE SUMMONED and required to file your written appearance and response no later than 30 days not counting service”
If that spouse does not file your written appearance and response within 30 days the other spouse may be able to default you and thereby be granted all the relief they are requesting in their Petition For Dissolution of Marriage.
30 days is not a lot of time to raise thousands of dollars to pay a divorce attorney to prepare and file an Appearance and Answer to the Petition For Dissolution Of Marriage.
Getting Your Spouse To Pay Your Divorce Attorney’s Retainer
If your potential divorce lawyer is confident that your spouse can pay your fees, they may petition the court for your spouse to pay that initial retainer.
“A petition for interim fees that seeks an order for the payment of an initial retainer to retain an attorney shall have attached to it an affidavit from the attorney to be retained that the attorney has been contacted by the moving party and the attorney has agreed to enter an appearance if the court grants the relief requested, together with a certificate from the moving party that the interim fees granted will only be used by the moving party to retain the attorney.” 750 ILCS 5/501(c-1)(1.5)
Please note that this is not the divorce attorney representing you. This petition is merely the divorce attorney telling the court “I will represent this person if you order their spouse to pay my attorney’s fees.”
It is not an especially confident first step in an Illinois divorce and immediately reveals that you have limited resources to litigate with. Still, it is likely that any litigation that occurs will be paid for by the monied spouse and, therefore, be twice as expensive for the monied spouse.
If you are begging for attorney’s fees you are likely to also be requesting support shortly. This initial petition is for attorney’s fees only.
“Any interim fees granted pursuant to this paragraph shall be paid directly to the identified attorney.” 750 ILCS 5/501(c-1)(1.5)
Soon enough, that retainer will be exhausted if the litigation is protracted and your divorce attorney will ask for more money or they will withdraw from representing you.
Getting Your Spouse To Pay Your Attorney’s Fees As Your Divorce Case Proceeds
You can keep going back to the well for attorney’s fees from your spouse. Once that seal is broken, your spouse will likely be responsible for your divorce attorney’s fees on an ongoing basis.
“Th[e]…interim fee system [is] an attempt to address the problem of the “economically disadvantaged spouse,” where one spouse uses his or her greater control of assets or income as a litigation tool, making it difficult for the disadvantaged spouse to participate adequately in the litigation.” In re Stella, 818 NE 2d 824 – Ill: Appellate Court, 1st Dist., 2nd Div. 2004
“Interim attorney’s fees and costs may be awarded from the opposing party, in a pre-judgment dissolution proceeding in accordance with subsection (c-1) of Section 501” 750 ILCS 5/508(a)
“Except for good cause shown, a proceeding for (or relating to) interim attorney’s fees and costs in a pre-judgment dissolution proceeding shall be nonevidentiary and summary in nature.” 750 ILCS 5/501(c-1)
“In assessing an interim award, the court shall consider all relevant factors, as presented, that appear reasonable and necessary, including to the extent applicable:(A) the income and property of each party, including alleged marital property within the sole control of one party and alleged non-marital property within access to a party;(B) the needs of each party;(C) the realistic earning capacity of each party;(D) any impairment to present earning capacity of either party, including age and physical and emotional health;(E) the standard of living established during the marriage;(F) the degree of complexity of the issues, including allocation of parental responsibility, valuation or division (or both) of closely held businesses, and tax planning, as well as reasonable needs for expert investigations or expert witnesses, or both;(G) each party’s access to relevant information;(H) the amount of the payment or payments made or reasonably expected to be made to the attorney for the other party; and(I) any other factor that the court expressly finds to be just and equitable.” 750 ILCS 5/501(c-1)
Without swearing in witnesses and presenting exhibits, how can a court accurately assess any of these factors? The court cannot! Therefore, courts usually lean into “(H) the amount of the payment or payments made or reasonably expected to be made to the attorney for the other party”
This creates a vicious cycle (for your spouse). The more your spouse pays their attorney…the more your spouse will have to pay your attorney.
If you spouse’s attorney simply tells your spouse “you can pay me later,” you cannot expect your spouse to pay your divorce attorney’s fees on an interim fee basis.
Why would an attorney delay payment from their own client? To strategically weaken their opponent’s capacity to litigate…and that attorney knows they will get paid via a fee petition against their own client later. It is a bold and not uncommon move.
When an opposing attorney claims not to have been paid, they must at least state what they have charged.
“When a party files a petition for interim attorney’s fees and costs supported by one or more affidavits that delineate relevant factors, the court (or a hearing officer) shall assess an interim award after affording the opposing party a reasonable opportunity to file a responsive pleading. A responsive pleading shall set out the amount of each retainer or other payment or payments, or both, previously paid to the responding party’s counsel by or on behalf of the responding party. A responsive pleading shall include costs incurred, and shall indicate whether the costs are paid or unpaid.” 750 ILCS 5/501(c-1)
An incredulously large fee without payment should be brought to the court’s attention. Is it not unreasonable to tell the court, “I don’t believe any further litigation should occur until ALL attorneys are paid?”
This is a fine strategy…unless you need to litigate temporary issues now.
A divorce attorney may attempt to be paid by the opposing party at the end of the case via a Petition For Contribution To Fees.
“After proofs have closed in the final hearing on all other issues between the parties (or in conjunction with the final hearing, if all parties so stipulate) and before judgment is entered, a party’s petition for contribution to fees and costs incurred in the proceeding shall be heard and decided” 750 ILCS 5/503(j)
If that attorney’s client is awarded any assets whatsoever, that client will be expected to use some of those assets to pay their own attorney.
Failure to pay the balance of attorney’s fees owed after an order for contribution to attorney’s fees is made will result in the attorney suing their own client in the very divorce court they represented that client.
The Illinois Marriage and Dissolution of Marriage Act allows for “[f]inal hearings for attorney’s fees and costs against an attorney’s own client” 750 ILCS 5/508(c)
The Calculus Of Paying Attorney’s Fees
Divorce attorneys aren’t always worth the cost. If there are little to no issues in your case, just agree to a proposed Marital Settlement Agreement and move on with your life.
A divorce case which is not worth litigating is rare, however. A married couple almost always has assets and debts which need to be properly divided. Furthermore, if there are children the schedule for the children needs to be properly clarified and child support must be calculated correctly. If either spouse earns more than 150% of what the spouse earns, then maintenance is also a possibility.
The money you may receive from your spouse or be forced to pay to your spouse should dwarf the amount of money your divorce attorney is requesting.
Would your spouse owe you $ 500 in child support a month for the next 10 years? That is $ 60,000!
Does your spouse have $ 50,000 in a 401(k)? You are probably entitled to $ 25,000 of that amount.
Do you have $ 20,000 in credit card debts? Your spouse is probably responsible for $ 10,000 of those debts.
Is your divorce lawyer asking you to pay bills that are anywhere close to those amounts? I doubt it.
The problem is usually that the money just isn’t immediately available. In that case, put the attorney’s fees on a credit card.
Debts incurred before you are finally divorced are marital debts and, thus, are divisible in the final division of assets and debts.
‘[M]arital property’ means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 5/503(a)
“[A]ll [debts] acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage [are] presumed [to be] marital property.” 750 ILCS 5/503(b)
So, you can expect a refund of sorts from your soon-to-be-ex when the final assets and debts are divided.
If a credit card company will not extend you sufficient credit to pay your divorce attorney, you are going to need to explain the math to your extended family (it’s always parents) or friends to get a loan from them directly.
A loan from family or friends will not be considered a marital asset or income when calculating the division of assets or support in your Illinois divorce.
Why is divorce so expensive? Because it’s worth it! Even if you can’t afford a divorce attorney in Illinois, you need to make all the inquiries possible to protect your rights. This can include inquiring into available pro bono divorce attorneys.