Leveling the Playing Field
This law was enacted in 1997 to allow both parties in a divorce, custody or other domestic relations case seek interim attorneys fees from the other party. The party would need to show that they do not have the ability to pay their own fees, or that the other party has a superior ability to pay fees. In a divorce case any award of interim fees was usually an “advance” to the spouse from what he/she may receive from the marital estate at the end of the case. Interim attorney fee hearings in pre-decree divorce cases are summary non-evidentiary hearings. One judge in Cook County has a two part test 1) How much do you want and 2) where am I going to get it. The answer to question number 2 is usually the most difficult. The court will first look to see if there is cash to pay attorney fees. If there is not, the court may order it to go on a credit card or for the party to liquidate an assets (such as a 401(k) or IRA).
In paternity, custody or child support cases, there is not marital estate. Also, in post-divorce there is no marital estate. Interim attorney fees in this cases are now no longer summary and non-evidentiary. So the burden in obtaining interim attorney fees in these situtations are more difficult.
Interim fee payments are not automatically considered dissipation of marital funds
Section 503 of the IMDMA (the standard for dividing property in a divorce) has now added a factor for the court to determine the distribution of marital property “any such decrease attributable to a payment deemed to have been an advance from the parties marital estate under Section 501.” This means that the court can “add back or charge to” one parties litigation costs.
A party should always factor in the other parties payment of attorney fees to their attorney in a divorce. If the fees are show to be “selfish and excessive” then the court could still find those fees to be dissipation of marital assets and the court could award the other spouse a greater share of the remaining marital property.