A common question that attorneys in the family law division encounter is:  “My spouse is the primary earner or controls the finances; how am I going to afford to keep paying you as my attorney?”

Fortunately, there are a few options available.  The law provides that one party to a divorce may petition the other party for an “interim award” of attorney’s fees and costs.  What this means in layman’s language is that you can ask the judge to order the other party to pay your attorney’s fees.   There is a list of factors the judge must consider when faced with this request, most notably “the income and property of each party, including alleged marital property within the sole control of one party and alleged non-marital property within access to a party.”  Additionally, judge must find the other party “has the financial ability to pay” and the party asking for fees “lacks sufficient access to assets or income to pay reasonable amounts.”

The next question which inevitably arises is: “What happens if my spouse gets a loan to pay their attorney’s fees from a family member or a bank?”  This very issue came up in 2013 before the Illinois Supreme Court in a case called In re the Marriage of Earlywine.  In this case neither party had the ability to pay for attorneys.   However, one of the parties received a loan from a family member for approximately $9,000 to hire an attorney.  The other party filed a motion for interim attorney’s fees or in the alternative asked the court to “disgorge” (turnover) one half of the attorney’s fees already paid so the other spouse’s attorney could get paid.  Ultimately, the Illinois Supreme Court held that in order for both parties to be on an equal footing, the court could “level the playing field” so that both parties had the equal amount to hire an attorney and ordered that half of the attorney’s fees already paid be turned over to the other spouse’s attorney.

Finally, a common question that Will, Grundy and DuPage County family law attorneys encounter is, “is there a way to have my spouse pay my attorney’s fees in the end?”  Illinois law provides that a party can file within fourteen (14) days after the final hearing on all the issues between the parties a petition for “contribution” of attorney’s fees.  The court will again consider a number of factors, most notably:

  1. each party’s contribution to the acquisition, preservation , or increase or decrease in the value of marital or non-marital property;
  2. the value of the property assigned to each spouse;
  3. the duration of the marriage; and
  4. the relevant economic circumstances of each spouse when the division of property is to become effective.

Thus, simply because one spouse controls the money does not mean the other should be disadvantaged in hiring an experienced quality family law attorney.  For assistance in these matters and any other family law problems, contact McNamara Phelan McSteen, LLC.  Our family law attorneys have over 60 years of combined experience in helping people through divorce.

Attorney Todd J. Polito has years of experience representing both husbands and wives in divorce and post-divorce matters in Will County, Grundy County and DuPage County. He and the attorneys of McNamara Phelan  McSteen, LLC are here to help you.  We offer flexible appointment times.  Please contact us for a no-obligation consultation to review your circumstances.


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