Can I Make My Spouse Pay My Attorney Fees in Illinois?

The short answer

Each spouse pays their own lawyer unless the court orders otherwise. Section 508 of the Illinois Marriage and Dissolution of Marriage Act lets a judge shift fees after notice and a hearing, based on the parties' financial resources. When you ask, and why, decides which rules apply: interim fees during the case, contribution at the end, or mandatory fees when someone violates an order.

Illinois lets courts shift fees in some cases

Under 750 ILCS 5/508(a), the court may, after due notice and a hearing and after considering the financial resources of the parties, order any party to pay a reasonable amount toward their own or the other party's costs and attorney fees. Awards can be made for bringing or defending a case under the Act, enforcing or modifying a judgment, defending an appeal, the work to prepare a case before filing, and related litigation. Fees for bringing an appeal, or for a petition under Section 2-1401 of the Code of Civil Procedure to vacate a judgment, can go only to a party who substantially prevails.

Fee shifting is not automatic. The judge decides whether to order it, how much is reasonable and who receives payment. The court may order the money paid directly to the lawyer, who can then enforce the order in the lawyer's own name.

Interim fees while the case is pending

Section 501(c-1) defines interim attorney fees as fees and costs assessed from time to time while a case is pending, including an allowance from the other party for a retainer to hire a lawyer. The key rules:

• Fast and summary. Except for good cause, interim fee proceedings in a pre-judgment divorce are nonevidentiary and summary, and hearings must be scheduled expeditiously.
• Affidavits required. The petition must be supported by one or more affidavits that describe the relevant factors. The other side then gets a reasonable chance to file a response, which must state the retainers and other payments already made to its own lawyer and the costs incurred.
• The standard. The court shall award an amount necessary to let the petitioning spouse participate adequately in the litigation, if it finds that the other spouse can pay reasonable amounts and the petitioning spouse lacks sufficient access to assets or income. Except for good cause, the award shall not be less than what the other side has paid or expects to pay its own lawyer.
• When neither can pay. If both spouses lack the ability to pay, the court allocates available funds between both lawyers to achieve substantial parity.
• Retainer requests. A petition asking for a retainer must attach an affidavit from the lawyer to be hired, confirming the lawyer will appear if relief is granted, plus a certificate that the money will only be used to retain that lawyer. The award is paid directly to the lawyer.

An interim award does not settle the final bill. Section 501(c-1)(2) says it is without prejudice to the final allocation, and interim awards are treated as advances from the marital estate unless the court orders otherwise. Any overpayment can be ordered paid back. The court uses a standardized form order titled "Interim Fee Award Order." After a judgment, Section 508(a-5) allows a petition for temporary fees in a post-judgment case to be heard on a non-evidentiary, summary basis.

Contribution at the end of the case

A petition for contribution to attorney fees asks the court to decide, at the end of the case, how much one spouse should pay toward the other's fees. Under Section 503(j), it is heard after proofs close in the final hearing and before judgment, or together with the final hearing if all parties agree. If it was not filed earlier, the petition must be filed no later than 14 days after the close of proofs, or within another period the court orders.

The award is based on the same criteria used to divide marital property under Section 503 and, if maintenance was awarded, the maintenance factors in Section 504. Filing a contribution petition does not waive the attorney-client privilege. The court can award a set dollar amount or a percentage of fees.

Fees when the other side violates an order

Section 508(b) is stricter. In every proceeding to enforce an order or judgment, when the court finds that the failure to comply was without compelling cause or justification, it shall order the party who violated the order to promptly pay the prevailing party's costs and reasonable attorney fees. Noncompliance with a discovery order is presumed to be without compelling cause, and that presumption can only be rebutted by clear and convincing evidence.

Section 508(b) also says that if a hearing was brought or conducted for an improper purpose, such as harassment, unnecessary delay or needlessly increasing the cost of litigation, the court shall allocate the fees for that hearing to the party or lawyer who acted improperly. Other parts of the Act have their own fee rules. Section 607.5(d) requires fees, except for good cause, against a parent who failed to provide or use allocated parenting time, and Section 610.5(f) assesses fees against a party whose modification case is vexatious or harassing. Our guide to the petition for rule to show cause explains enforcement, and our post-decree motions guide covers requests after judgment.

What evidence the judge looks at

For interim fees, Section 501(c-1)(1) lists the factors the court considers, to the extent they apply:

• each spouse's income and property, including marital property under one spouse's sole control and non-marital property within a spouse's reach;
• each spouse's needs and realistic earning capacity, and any impairment from age or physical or emotional health;
• the standard of living during the marriage;
• how complex the issues are, such as parenting disputes, valuing a closely held business or tax planning, and any reasonable need for outside investigators or professional witnesses;
• each spouse's access to relevant information;
• what has been paid, or is expected to be paid, to the other spouse's lawyer; and
• any other factor the court expressly finds just and equitable.

Bring evidence that speaks to these factors: your financial affidavit and proof of income, your engagement agreement and itemized invoices, records of what you have paid, account statements showing who controls the money, and a short summary of the issues that make the case complex.

Who files, deadlines and Cook County steps

Either spouse may ask. Interim fee petitions are filed while the case is pending; contribution petitions are due no later than 14 days after proofs close unless the court sets another time; Section 508(b) fees are sought in the enforcement proceeding itself. Section 508(a) requires every interim fee petition to include an affidavit on the factual basis for the request.

1. Gather records. Collect your engagement agreement, invoices, payment history and financial records.
2. Serve your financial affidavit. Cook County Circuit Court Rule 13.3.1 requires a financial affidavit, with proof of income under Rule 13.3.2, when a party seeks attorney fees and costs from the other party.
3. Draft the petition. Rule 13.4(a) requires a written, verified petition with an accurate title that states the authority relied on, such as 750 ILCS 5/501(c-1) and 5/508(a). Attach the supporting affidavits and, for a retainer request, the lawyer's affidavit and your certificate.
4. E-file and give notice. File through eFileIL in your case and serve a notice of motion that meets Cook County Circuit Court Rule 2.1, usually by e-mail under Supreme Court Rule 11.
5. Attend the hearing. Bring copies of everything and a completed Interim Fee Award Order for the judge to consider. Hearings may be in person or by Zoom.
6. Collect. If the order is not paid, the court can enforce it, and an order payable to your lawyer can be enforced by the lawyer.

What the other side can do

• File a responsive pleading, which for interim fees must disclose the retainers and payments made to its own lawyer.
• Argue that it lacks the ability to pay, or that the petitioning spouse has access to marital funds or income.
• Challenge the fees as unreasonable or unnecessary.
• Ask for an evidentiary hearing by showing good cause.
• At contribution, argue the property and maintenance factors in Sections 503 and 504; in enforcement, show compelling cause for the noncompliance.

Common mistakes to avoid

• Filing without affidavits or invoices. The court needs a factual basis.
• Asking for a retainer without the lawyer's affidavit. Section 501(c-1)(1.5) requires it.
• Missing the 14-day contribution deadline. Calendar it before the final hearing ends.
• Treating an interim award as final. It can be reallocated at the end of the case.
• Running up fees to pressure the other side. Section 508(b) shifts fees for hearings brought for an improper purpose.
• Skipping the financial affidavit. In Cook County it is required for fee requests against the other party.

How Chicago Family Attorneys can help

Chicago Family Attorneys, at 53 W. Jackson Blvd., Suite 752, in the Chicago Loop, represents clients in Cook, DuPage, Will and Lake Counties and publishes its fees so you can plan:

• Limited-scope drafting. Drafting a petition for interim fees or another motion for you to file is a flat fee starting at $500.
• One hearing appearance. Appearing for you at a specific hearing is a flat fee starting at $1,200. See limited-scope fees.
• Full representation. An initial payment of $1,500 to $2,500, then $500 to $650 per month beginning 30 days after the initial payment while representation remains active. See contested divorce fees.
• Agreed cases. Attorney-handled uncontested divorce is a $1,500 flat fee, court filing fees not included. Self Represented Documents, for people handling an agreed divorce themselves, is $399.

Section 508 also sets rules for written engagement agreements in Illinois divorce cases, including a statement of client rights and responsibilities. Your fee and scope are confirmed in writing before you engage the firm. Compare options on our fees and payment options page, read how much a divorce costs in Illinois, and prepare with our 25 questions for your divorce consultation. If the case is still starting, our guide to temporary relief explains how fee requests fit with support and parenting orders.