Obtaining Relief for Attorney Fees During Divorce

 Posted on December 04, 2017 in Divorce

When going through a divorce, the financial resources that each party has can be used to his or her advantage. Having available money allows a party to hire and retain a skilled divorce attorney to help during the case. Conversely, a party who lacks financial resources may worry about his or her ability to pay attorney fees. Spouses with less money can be at a disadvantage in hiring the attorneys they want and being able to keep them during the divorce. Illinois lawmakers do not want unequal financial resources to determine which spouse receives a better divorce settlement. Thus, they added a section to the Illinois Marriage and Dissolution of Marriage Act that allows a spouse to request that the other spouse help pay for attorney fees.

Leveling the Playing Field

Illinois’ divorce law states that a spouse may request temporary relief from the other spouse for interim attorney fees and costs during a divorce case. The purpose of the law is to ensure that both spouses have equal access to legal representation during the divorce process. Thus, a court will grant temporary relief only if it believes the requesting spouse needs money to pay for adequate legal resources. Considerations include:

• The available income and property each spouse has;
• Each spouse’s earning capacity and established standard of living;
• Reasonable costs for attorney fees; and
• Whether complicated matters during the divorce will require greater legal expenses.

Disgorgement

A spouse may not have enough financial resources to afford to pay for the other spouse’s attorney fees. In such cases, Illinois’ divorce law states that the paying spouse’s attorney can be ordered to pay for the temporary relief from available payments he or she has already received. The process is commonly called disgorgement. During a divorce, clients often pay different types of retainers to attorneys, including:

• General retainers, paying for the attorney’s availability;
• Security retainers, which are held in trusts and used as necessary during the case; and
• Advanced payment retainers, in which clients pay for future legal services.

There have been several court cases regarding what is considered available money to be disgorged. The Illinois Supreme Court has ruled that security and advanced payment retainers count as available money, excluding portions of the retainers that the attorney has already earned through services provided.

Paying for Divorce

Your ability to pay your attorney should not determine whether you are able to receive the legal representation you need during your divorce. A Kane County divorce attorney at Goostree Law Group can discuss financing options, such as temporary relief, that may help you. Schedule a free consultation by calling 630-584-4800.

Source:

http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2086&ChapterID=59