Can A Court Really Order My Spouse to Help Pay My Attorney's Fees?

 Posted on January 28, 2015 in Divorce

While it is vital to hire an attorney to help guide you through a dissolution of marriage, the idea of paying that attorney’s fees can be daunting. At the beginning of a divorce, it is very common for one spouse to not have a significant paying job outside of the home. Even in marriages where this is not the case, it may be that one spouse primarily controlled the household finances. For someone who was never the primary wage earner or never had much to do with the marital finances, the thought of paying his or her own attorney’s fees may be especially scary. Fortunately, there are laws in Illinois that allow trial courts to order one party to contribute to the other’s attorney’s fees under certain circumstances.

The Law

As a general rule, each party to the dissolution is responsible for paying his or her own attorneys fees. However, trial courts are allowed to order one party to pay, or at least contribute to, the other’s attorney’s fees at the end of the divorce in certain situations. In determining whether or not they should award the payment of attorney’s fees by the non-client spouse, courts are told that they should consider the following:

• The allocation of assets and liabilities in the divorce;
• Any maintenance awarded; and
• Which party created the need for the legal fees presently at issue.

While the trial court should consider the above mentioned factors, the party seeking contribution to attorney’s fees must prove to the court that:

• He or she is unable to pay the fees; and
• The other party has the ability to pay those same fees.

Note that a clear inability and ability to pay the fees must be shown – showing merely that one of those parties is more able to pay (has a higher income and/or more assets) will not satisfy the burden. Generally, a party may establish his or her inability to pay the attorney’s fees if he or she can show that the payment of those fees would seriously undermine that person’s economic stability.

One last hurdle in an attempt to receive contribution to attorney’s fees involves showing that the attorney fees at issue were, in fact, reasonable. Some of the factors that courts will consider in determining whether the fees incurred were reasonable include:

• The nature of the controversy;
• The skill of the attorneys employed;
• The time and labor required for the case; and
• The cost of those fees from other attorneys in the community.

What You Can Do