Will your spouse have to pay for your attorneys fees in your divorce?

The short answer to this question is maybe.  The longer answer depends on the particular facts and circumstances of your financial estate and in large part, who your Judge is.

There are two ways for you to get attorney’s fees.  One is during the course of the litigation on an interim basis, or the other would be to ask for contribution at the end of the case.  In Illinois, Section 501 (c-1) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) deals with interim attorney’s fees. Section 508 of the IMDMA also deals with prospective fees, but is ordinarily relied upon for final fees.

Of course, most divorce lawyers are not able to represent clients with hopes that they will be paid at the end of the case. Therefore, the interim attorney’s fee statute was designed to help level the playing field between litigants where one litigant may have control over the assets and income of the marriage, and ordinarily be in a greater position of power.

Theoretically, this seems like an equitable concept, but in practice, the Courts have broad discretion in allocating attorney’s fees and it has been my experience that some judges are more inclined to award attorney’s fees than others. Even when attorney’s fees are awarded, it depends upon the particular Judge as to whether he or she will actually enforce the order if the obligor does not pay.

Accordingly, most lawyers are going to expect an initial retainer even if there is a plan to pursue interim attorney’s fees. Going into a divorce you should always try to secure sufficient funds for a retainer, even if you have to use a credit card or borrow money, to ensure that you are able to retain a competent attorney and cover the costs that it will take to have a more substantial attorney’s fee award ordered by the court, which can take considerable time. While the statute, as written, is very well intended, in practice things do not always work as intended, so you must always prepare yourself with a backup plan.

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