Collecting Attorney Fees in Illinois Family Law Cases

Family law cases are terribly hard — both emotionally, and financially. Working with an attorney to bring your case to resolution can feel like you are hemorrhaging money, especially if the case is highly disputed and the other party is refusing to be reasonable. As a result, I am often asked if the court can order my spouse to pay my attorney’s fees. Like most family law issues, the answer to this question depends on the circumstances of your case.

Seeking Attorneys Fees in Family Law Cases

In family law cases, whether they are parenting matters or divorce matters, the expense of a prolonged legal battle frequently motivates people to settle for a deal that is not in their best interests nor is a solution to the issues they hired an attorney to address. Thankfully, the Illinois Marriage and Dissolution of Marriage Act (the “IMDMA”) has a few different ways of providing relief to parties who need financial assistance or who are entitled to having some of their fees paid by the other party.

The first section that deals with attorneys’ fees is Section 508(a) of the IMDMA. Section 508(a) provides relief to a party with uneven litigation power, where one party has significantly more financial resources than the other party (the party seeking the fees). The Court is required to consider a number of factors in this section before making a determination on the appropriateness of an award, including the income and property of each party, the needs of each party, the parties’ earning capacities, any impairment to their earning capacities, the degree of complexity of the issues in the case, and other relevant factors. A hearing on a fee petition citing 508(a) will be a summary hearing — meaning neither party will give testimony — unless the party wishing for testimony has good cause for such testimony to be given. Usually, an award of attorneys’ fees under this section is appropriate to achieve what’s called “substantial parity” between the parties — or to put them on a level playing field in the litigation, so one party cannot wear the other party down due to their lack of financial resources.

The second section that deals with attorneys’ fees is Section 508(b) of the IMDMA. This is the section that punishes bad behavior with money, specifically, bad behavior against a court order:

(b) In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without compelling cause or justification, the court shall order the party against whom the proceeding is brought to pay promptly the costs and reasonable attorney’s fees of the prevailing party. If non-compliance is with respect to a discovery order, the non-compliance is presumptively without compelling cause or justification, and the presumption may only be rebutted by clear and convincing evidence. If at any time a court finds that a hearing under this Act was precipitated or conducted for any improper purpose, the court shall allocate fees and costs of all parties for the hearing to the party or counsel found to have acted improperly. Improper purposes include, but are not limited to, harassment, unnecessary delay, or other acts needlessly increasing the cost of litigation. 750 ILCS 5/508(b)

For example, if the opposing party refuses to let you have Father’s Day with your child despite an order granting you the day, and you incur legal expenses bringing an action in Court requiring them to give you the time on Father’s Day, you may be successful to ask the Court to enter an Order requiring the other party to pay your legal expenses. That would be an act that needlessly increases the costs of litigation — and the need for litigation at all. This section works as an incentive to follow the Court’s orders (the carrot) or else face an award of attorneys’ fees against you for the fees you required the other side to incur (the stick).

Attorneys’ Fees for Not Responding to Discovery Requests

There are other ways of seeking attorneys’ fees within family law cases. If the other party is disrespecting the rules of discovery by not responding to reasonable discovery requests, you can bring a Petition for Fees under Supreme Court Rule 219(a), as follows:

(a) Refusal to Answer or Comply with Request for Production. If a party or other deponent refuses to answer any question propounded upon oral examination, the examination shall be completed on other matters or adjourned, as the proponent of the question may prefer. Thereafter, on notice to all persons affected thereby, the proponent of the question may move the court for an order compelling an answer. If a party or other deponent refuses to answer any written question upon the taking of his or her deposition or if a party fails to answer any interrogatory served upon him or her, or to comply with a request for the production of documents or tangible things or inspection of real property, the proponent of the question or interrogatory or the party serving the request may on like notice move for an order compelling an answer or compliance with the request. If the court finds that the refusal or failure was without substantial justification, the court shall require the offending party or deponent, or the party whose attorney advised the conduct complained of, or either of them, to pay to the aggrieved party the amount of the reasonable expenses incurred in obtaining the order, including reasonable attorney’s fees. Ill. S. Ct. R. 219(a).

The rules of discovery are paramount in our court system — each party needs to comply with the rules of discovery and provide written answers to discovery so that the parties can adequately prepare for any hearings/trials on the matter.

The Right Chicago Family Law Attorney Can Make a Difference In Your Case

A skilled Chicago family law attorney can draft, present, and argue a fee petition on your behalf, as well as the underlying issue causing the dispute for you, which is why it’s always a good idea to avoid representing yourself. Hire an experienced divorce attorney in Chicago to represent your interests in these cases and ask them to discuss the possibility that the other party will have to contribute to your legal fees and costs.




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