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When Going Through a Divorce, Who Pays Attorneys’ Fees in Illinois?

When Going Through a Divorce, Who Pays Attorneys’ Fees in Illinois?

Date: January 31, 2017

Our Arlington Heights Divorce Lawyers Are Here To Answer Your Questions!

Divorce can be a lengthy, expensive, and emotionally draining process. Cost is of course a concern for many clients going through a divorce, and when considering who will pay attorneys’ fees, the general answer is that typically each side pays their own attorney for the work done on the case. This is usually not an issue in simple, uncontested divorce cases. However, when spouses dig in and insist on fighting every step of the way, a court may decide that one side is entitled for legal fees paid for by the other party.

When Are Attorneys’ Fees Awarded in Divorce Cases?

Section 5/508(a) of the Illinois Marriage and Dissolution of Marriage Act outlines seven instances in which attorneys’ fees may be awarded:

  • To defendant against any proceeding initiated under the Act;
  • To enforce or modify a court order
  • To defend again1st an appeal of a court order
  • To defend against an action to modify or vacate a court order
  • Costs related to the preparation of a divorce action
  • Other litigation related to the divorce case
  • Cases involving international child abduction and the Hague Convention

How Courts Determine Whether it is Appropriate to Award Attorneys’ Fees

When considering whether to award attorneys’ fees, courts look to how assets were allocated, whether one party is paying maintenance to the other, the earnings of the parties, and which party precipitated the need for legal fees.

The party seeking legal fees must show that an inability to pay legal fees, and the ability of the other party to pay those fees. That may sound relatively straightforward, but Illinois courts have repeatedly held that it is not as simple as showing that one spouse has more money than the other. The 1982 case In Re Bentivenga held that the inability of the party seeking attorneys’ fees must be so great that requiring them to pay for their own attorney “would strip the person of the means of her support and undermine her economic stability.”

Similarly, just because one party has significantly more assets doesn’t mean they will be required to pay legal fees. A court will also look to the monthly expenses of the party making more money, and if they’re spending more money than they’re taking in, a court will likely not order them to pay attorneys’ fees for the other side.

Filing for Divorce?

If you are going through a divorce or considering filing, the you need an experienced divorce attorney on your side who will fight to ensure you get your fair share of marital assets and that will prevent your spouse from taking advantage of you. Contact S.A.M. LAW OFFICE, LLC today to speak with an Arlington Heights divorce attorney about the divorce process in the state of Illinois.

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