In this article, we answer the question “who pays attorney fees in a divorce in Illinois?”, including “what is a petition for interim attorney fees?”, “when do divorce courts grant petitions for interim attorney fees?”, “what if neither party to a divorce can afford to pay attorney fees?”, “can interim attorney fee awards be taken from the retainer paid to the other party’s attorney?” and “how do interim attorney fee awards impact asset division in divorce?”
The general rule in litigation is that each side bears its own attorney fees and court costs. However, in a divorce, courts have discretion to allocate attorney fees based on the resources of the parties.
Parties to a divorce can file petitions for interim attorney fees seeking to have their past and future attorney fees paid in part or in whole by the other party.
Illinois divorce courts will grant petitions for interim attorney fees in an amount reasonably necessary to allow the petitioner to participate adequately in the litigation if the petitioner lacks sufficient access to assets or income to pay such amounts and if the respondent has the financial ability to pay such amounts. The goal is to avoid a situation in which one party has a financial advantage in the divorce litigation.
In determining whether to award attorney fees in a divorce as well as how much to award, courts can consider any relevant facts. However the Illinois Marriage and Dissolution of Marriage Act instructs them to consider the following factors to the extent they are applicable:
If the court finds that both parties lack the financial ability to pay reasonable attorney’s fees, the court will allocate the couple’s available funds between each party’s attorneys in a manner that achieves substantial parity between the parties to the divorce.
If the respondent to an interim attorney fee petition has paid a retainer to his or her attorney, the court may require the attorney to pay some or all of this amount to the other attorney as part of the attorney fee award. This avoids a situation where one party essentially makes assets unavailable to the other party by paying an unusually large retainer to his or her attorney.
Interim attorney fee awards are considered when determining the final division of assets and liabilities in the divorce. They act like a down payment toward the final division of property. The more that is awarded in interim attorney fees to one party, the less theoretically tends to be awarded in the ultimate asset division.