Leveling the field

Interim fee awards help litigants and their lawyers

All in the Family

Celia Gamrath

Celia Gamrath is a judge in the Cook County Circuit Court Chancery Division. She was assigned previously to the Domestic Relations Division and was a family law practitioner earlier.

Spouses considering divorce have a whole host of things to consider before they pull the trigger, including how to pay their attorney fees. Under 750 ILCS 5/501(c-1), the interim fee statute, one spouse may be ordered to pay the interim attorney fees of the other during the litigation depending on the parties’ relative income, needs, earning capacity, standard of living, complexity of the case, access to information and how much has been or will be paid to the other attorney.

The goal of the interim fee statute is to equalize the parties’ relative positions in terms of legal representation and allow the petitioning party the chance to participate adequately during the litigation. Two recent cases highlight the importance of interim fee awards for litigants, as well as their lawyers, and the vast discretion judges have in awarding fees.

In In re Marriage of Keller, 2020 IL App (2d) 180960, the 2nd District Appellate Court upheld a judgment against the husband in the amount of $7,500 for the wife’s interim fees even though the parties brought a joint motion to voluntarily dismiss their divorce action. Using an abuse of discretion standard, the appellate court affirmed the trial court’s decision, stating the husband “should not be allowed to escape liability for a previously established obligation through such a procedural maneuver.” 2020 IL App (2d) 180960 at Par. 17.

Ordinarily a party has the unfettered right to voluntarily dismiss its case prior to the beginning of trial or hearing upon payment of costs. Costs are not attorney fees, and thus, the husband argued the judgment for fees placed an impermissible condition on the voluntary dismissal. The appellate court disagreed. The order, in fact, placed no conditions on the voluntary dismissal and did not require the husband to satisfy the judgment prior to dismissal. Rather, the court simply entered the $7,500 fee award as a judgment, allowing it to be enforced later by the wife’s former attorneys.

Notably, the interim fee award was converted to a judgment prior to the voluntary dismissal, which defeated the husband’s argument that the interim fee award was a temporary order that terminated upon dismissal under 750 ILCS 5/501(d)(3). This benefited the wife, as well as her former lawyers, who could chase the husband later for enforcement of the $7,500 judgment despite dismissal of the divorce case.

Likewise, in In re Marriage of Paris, 2020 IL App (1st) 181116, an interim fee award benefited the wife’s former attorneys, despite their withdrawal from the case.

Paris was a high-asset, highly litigious divorce case in Cook County where the trial court ordered a $750,000 fund be created for interim attorney, expert fees and costs. Of the $750,000, $200,000 was to come from a home equity line of credit and $550,000 was to be funded by the husband. The husband failed to pay the $550,000 and the trial court found him in indirect civil contempt of court. The court went so far as to enter a commitment order with a purge amount of $550,000. The husband appealed and received a stay of the commitment order after posting a $550,000 bond. Ultimately, however, the appellate court affirmed the finding of contempt and interim fee order in favor of the wife’s former counsel of record.

Although 750 ILCS 5/501(c-1)(3) contemplates the court will make certain findings in assessing an interim fee award, the trial court’s failure to expressly set forth specific findings in the order regarding the husband’s ability to pay was not automatically reversible as a matter of law. The appellate court recognized the trial court was in the best position to assess the nature of the alleged discovery delays, the husband’s claims about his current financials, the parties’ relative access to funds, as well as other relevant factors. The husband argued the majority of his assets were pledged and not accessible; however, the wife’s expert opined he had significant borrowing power and personal net worth in excess of $20 million. Based on the record, the court did not abuse its discretion in making the interim award. Indeed, as the appellate court noted, the husband’s claim that he lacked the ability to pay the $550,000 was discredited given that he posted the $550,000 bond within days of his incarceration.

These cases demonstrate how interim fee awards, designed primarily to address the problem of the economically-disadvantaged spouse in divorce litigation, benefit the lawyers too, and help guard against procedural maneuvering to escape liability for payment of hard-earned fees.