Divorce can, unfortunately, be an expensive proposition, particularly if there are complicated disputes about how to split property or spousal maintenance. Cases involving parental responsibilities and child support can also become extremely costly. In many such cases, one side may seek attorney’s fees from their former spouse. While it is possible to obtain legal fees from a former spouse under Illinois law, there are certain criteria that must be met in order to do so.
When Are Attorney’s Fees Awarded?
Under Section 5/508(a) of the Illinois Marriage and Dissolution of Marriage Act, there are several circumstances in which a court may award attorney’s fees following the conclusion of a divorce proceeding. These include to defend against a divorce or appeal, to defend against a modification to a court order, to enforce or modify a court order, or to reimburse costs for the preparation of a divorce petition. Essentially, almost any action related to a divorce is eligible for reimbursement of attorney’s fees. However, whether awarding those fees is appropriate is still left to the discretion of the court, and courts can be extremely hesitant to award attorney’s fees unless a spouse can show extreme hardship in paying their own way.
In determining whether one spouse should be entitled to attorney’s fees, a court must consider whether spousal support has been awarded, the income of each spouse, and how assets were allocated. The court will also take into account the conduct of the parties that led to the need for legal fees, such as whether one party filed a large number of motions.
To receive legal fees, the party seeking them must show an inability to pay and an ability by the other spouse to pay those fees. That may sound simple, but in Illinois, it is actually much more complicated than one party showing that he or she has less money than the other spouse.
In Re The Marriage of Bentivenga is a 1982 court of appeals case that demonstrated the high burden of proof regarding entitlement to attorney’s fees. It is not enough to merely incur a large amount of attorney’s fees or to have some trouble paying them. The court held that the need to receive attorney’s fees must be so great that refusing to award them “would strip the person of the means of her support and undermine her economic stability.”
According to that definition, you would need to show severe financial hardship to be entitled to attorney’s fees in a divorce case. It also means that if one spouse has a significantly higher income than the other spouse, a court will not order him or her to pay attorney’s fees on that basis alone.
Contact an Experienced Attorney
If you are considering filing for divorce, or have been served with a petition for dissolution of marriage, you need an experienced family law attorney on your side who will fight for your rights and seek attorney’s fees if warranted. Contact our compassionate DuPage County family law attorneys today for a complimentary consultation to discuss your case.