Obtaining Attorney Fees From Your Spouse

More often than not a client will ask about the possibility of having his or her spouse pay for attorney fees incurred in the litigation.  In each instance, I am careful to remind each client that the person hiring the lawyer is primarily responsible for his or her fees.  Nevertheless, there are specific instances where the other party can be compelled to pay attorney fees for the other side.

Generally, the Illinois Marriage and Dissolution of Marriage Act (IMDMA) allows fees from the other party during the proceeding under section 501 (c) (1) [interim (temporary) fees], section 503 (j) [final contribution to fees from the former spouse], and 508 (a) – (c), final fees, fees necessary to enforce the judgment or order of the court, ancillary or additional litigation, and appeals, among other reasons.

The main thrust in just about all of the fee-shifting provisions of the IMDMA is reasonableness.  The court is seeking to balance the financial playing field between spouses in order to allow them to litigate their issues fairly.  Our legislature has decided that it is unfair to allow the spouse with superior financial resources to overpower the less financially capable spouse.  This is why our courts see attorney fees as either dissipation (the use of marital resources for a non-marital purpose) or as an advance against that spouse’s share of the marital estate.  This approach allows the court to evaluate the reasonableness of the fees as well as balance the financial resources of the parties to compensate for any shortfall on one parties’ part.

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