Defending A Petition For Attorney’s Fees In An Illinois Divorce

Divorce lawyers are expensive. What’s worse, you may have to pay for your spouse’s divorce lawyer via court order. You may be ordered to pay attorney’s fees if you are the spouse who controls the marital assets, is earning more or is just taking a principled stand that the court does not agree with. If your spouse’s attorneys do file a petition for attorney’s fees, there are ways you can mitigated the potential fees both in the short term and in the long term. There Are Different Types Of Petitions For Attorney’s Fees Your spouse’s petition for attorney’s fees should state which statute they are basing their petition for fees upon. An Illinois divorce court has broad discretion to award attorney’s fees under 750 ILCS 5/508(a) and 750 ILCS 5/501(c-1). Pre-judgment, these two statutes work in tandem. “The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order any party to pay a reasonable amount for his own or the other party’s costs and attorney’s fees. Interim attorney’s fees and costs may be awarded from the opposing party, in a pre-judgment dissolution proceeding in accordance with subsection (c-1) of Section 501” 750 ILCS 5/508(a)(emphasis mine) I emphasize the word “may” because these awards are completely discretionary. Divorce judges do not necessarily enjoy awarding interim fees because giving a divorce attorney money can be like giving an arsonist more gasoline. Money for attorney’s fees will inevitably be spent on litigation instead of being divided by the parties at the end of the case. If you see 750 ILCS 5/508(a) cited in a petition for attorney’s fees, they must proceed under 750 ILCS 5/501(c-1)’s rules. “Except for good cause shown, a proceeding for (or relating to) interim attorney’s fees and costs in a pre-judgment dissolution proceeding shall be nonevidentiary and summary in nature.” 750 ILCS 5/501(c-1) Nonevidentiary hearings are based on the written petition and an oral argument alone. There will be no testimony. So, to defend against a petition for attorney’s fees, you must attack the petition. A petition for attorney’s fees must explain certain facts and positions. “All hearings for or relating to interim attorney’s fees and costs under this subsection shall be scheduled expeditiously by the court. When a party files a petition for interim attorney’s fees and costs supported by one or more affidavits that delineate relevant […]

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What Should An Illinois Divorce Lawyer Do If Their Client Has A Mental Incapacity?

It is not uncommon for a divorce lawyer to come to the conclusion that their opposing counsel and the adverse party are correct when they say “your client is crazy.” What obligation, if any, does an Illinois divorce lawyer have when they suspect that their client is suffering from a severe mental illness or incapacity. Illinois Divorce Lawyers Must Follow The Rules Of Professional Conduct Illinois divorce lawyers must be thoroughly familiar with The Rules Of Professional Conduct. Those rules govern our duty to out clients. The “Code of Professional Conduct, part of our Supreme Court Rules, have the force of law and embody the public policy of our state.” In re Marriage of Newton, 2011 IL App (1st) 090683, ¶ 40 Illinois divorce lawyers are supposed to treat their clients normally as much as possible under the circumstances. “When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.”  Ill. Sup. Ct. R. 1.14(a) If the Illinois divorce lawyer has a reasonable belief that the client cannot make their own decisions. The lawyer may take steps to investigate and possibly appoint a guardian ad litem for their mentally incapacitated client. Note that Rule 1.14(b) says “may”. An Illinois divorce lawyer is not under an obligation to take any further steps to address the client’s mental condition. “When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.”  Ill. Sup. Ct. R. 1.14(b) If the Illinois divorce lawyer does wish to address their client’s mental incapacity, the lawyer must balance the client’s mental issues with the consequences of those mental issues. Just because someone has a mental issue does not mean their divorce will necessarily have a different result. “In determining the extent of the client’s diminished capacity, the lawyer should consider and balance such factors as: the client’s ability to articulate reasoning leading to […]

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Fiduciary Duty And Divorce In Illinois

When you are married to someone you have a lot of mutual responsibilities to each other. It is up to you both to resolve those responsibilities. If you cannot resolve your mutual responsibilities, you file for divorce and, in Illinois, the Illinois Marriage and Dissolution of Marriage Act outlines what happens as you dissolve your relationship. You or your spouse may, however, have other relationships that invoke mutual responsibilities. If you or your spouse have business partners, there is a fiduciary duty between the business partners. It is not uncommon for a divorce between a married couple to coincide a “divorce” between one member of the couple and their business partner(s). As someone’s personal life crumbles, often their professional life collapses as well. Business Divorce And Fiduciary Duty In Illinois The division of a business by business partners, a “business divorce,” does not follow always follow a  statute, business divorces follow the operating agreement (which is llike a prenuptial agreement for a business). Businesses rarely unwind unless there has been some breach of trust between the parties due to fraud or negligence. After, all, why not keep a good thing going? The operating agreements rarely contemplate a horrendous act of fraud or negligence which would necessitate a business divorce. The common law tort of breach of fiduciary duty allows the aggrieved business owner to identify the fraud and receive compensation from their former business partner. When a business owner breaches “a legal or equitable duty arising out of a fiduciary relationship, a presumption of fraud arises….This type of fraud is called ‘constructive fraud.” Vermeil v. Jefferson Trust and Savings Bank of Peoria, 176 Ill. App. 3d 556, 564 (1988). To prove constructive fraud, a party must demonstrate “(1) a fiduciary relationship; (2) a breach of the duties that are imposed as a matter of law because of that relationship; and (3) damages.” Kovac v. Barron, 2014 IL App (2d) 121100, ¶ 64 (citing Lawlor v. North American Corporation of Illinois, 2012 IL 112530, ¶ 69) Significantly, “[c]onstructive fraud can arise only if there is a confidential or fiduciary relationship between the parties.” Prodromos v. Everen Securities, Inc., 341 Ill. App. 3d 718, 726 (2003). The business partner must establish that there was a fiduciary relationship. “Illinois law recognizes two types of fiduciary relationships—fiduciary relationships as a matter of law and fiduciary relationships as a matter of fact.” Shrock v. Meier, […]

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Foreign Marriage and Divorce in Illinois

People get married all over the world and then come to Illinois to live.  Often, along the way, those same people try to get divorced.  So, if you’re married in a foreign country, can you get divorced in Illinois? How do foreign marriages get treated under Illinois divorce law? Firstly, you do not have to get divorced in the country you got married.  If you have been in Illinois for 90 days, you can get divorced in Illinois. Illinois doesn’t really require you to formally prove that you were married in order to get divorced. To request a divorce, you must simply say where and when you were married in your petition for dissolution of marriage. “The complaint or petition for dissolution of marriage…shall be verified and shall minimally set forth: … The date of the marriage and the place at which it was registered” 750 ILCS 5/403(a) That’s it.  The state of Illinois will take your word for it that you were married and will subsequently grant you a divorce and allow you to invoke all the rights of divorce such as child custody, child support, alimony, division of assets under the Illinois divorce law…just because you said you were married. The only problem is when your supposed spouse says you are not, in fact married. Foreign Marriage Certificate In Cook County, Illinois and every other county in the United States, they keep a close record of who in fact is married and who is not.  Showing a marriage certificate from a county in the United States is going to prove you’re married. Does showing a marriage certificate from another country also prove you’re married?  It sure does! “Proof of Foreign Marriage. A marriage which may have been solemnized or had in any foreign state or country, may be proved by the acknowledgment of the parties, their cohabitation, and other evidence. Certified copies of records of a marriage performed in any foreign state or country obtained from an authorized state governmental unit, embassy, or consulate may be admitted as an exception to the hearsay rule.” 750 ILCS 5/409 In Illinois, you don’t need anything to prove the foreign marriage certificate is real beyond the certificate itself. This is important because almost every other document presented in an Illinois court must get around the hearsay rule. Hearsay in Illinois “is a statement, other than one made by the declarant while testifying […]

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Mental Examinations In An Illinois Divorce

As a divorce attorney, I have been told many times by potential clients that “my spouse is crazy.” Are all these spouses really mentally ill? We can always find out if a spouse has mental health issues using Illinois law. “Information is obtainable as provided in these rules through any of the following discovery methods: …physical and mental examination of persons.” Ill. Sup. Ct. R. 201(a) A motion can be filed for a mental examination of a party to a divorce under Illinois Supreme Court Rule 215. “In any action in which the physical or mental condition of a party or of a person in the party’s custody or legal control is in controversy, the court, upon notice and on motion made within a reasonable time before the trial, may order such party to submit to a physical or mental examination by a licensed professional in a discipline related to the physical or mental condition which is involved.” Ill. Sup. Ct. R. 215 The point of a 215 examination is to discover what is true. “The purpose of…rule [215] is to allow discovery that will assist the trier of fact in reaching its determination.” In re Estate of Silverman, 628 NE 2d 763 – Ill: Appellate Court, 1st Dist., 2nd Div. 1993 “Rule 215 is a rule of discovery, the purpose of which is to permit the discovery of facts which will assist the trier of fact to reach a correct determination of the issues before it. This rule does not permit unlimited and indiscriminate mental and physical examinations of persons but by its terms gives a trial court discretion to order such examinations only when certain requirements are met. The person sought to be examined must be a party (or a person in his custody or legal control), the physical or mental condition of that person must be in controversy, and good cause must be shown for the examination. Then, and only then, is discovery of that person’s physical or mental condition authorized by this rule… Rule 215 contemplates that the trial court in its discretion may order the physical or mental examination under appropriate conditions when all requirements of the rule have been met, irrespective of who has raised the issue of the person’s physical or mental condition.” In re Conservatorship of Stevenson, 256 NE 2d 766 – Ill: Supreme Court 1970 Once discovered, that information can be […]

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Mortgage Assumption In An Illinois Divorce

For forty years it was simple to get your spouse off your mortgage so you could keep the marital home after an Illinois divorce. The spouse that kept the marital house would refinance the mortgage. Some of the debt would have been paid off and mortgage rates were typically lower than they were when the mortgage was set or last refinanced. So, even if you had to pay your spouse their marital share of the equity in the home, the ongoing monthly payments post-refinance were usually lower. Then came 2022! Mortgage rates are now climbing. A spouse cannot simply refinance the mortgage to a lower rate and pay out the equity in the home. The new monthly payment is simply too high. For example, a $ 400,000 mortgage at 3.25% is $1740 a month. A $ 400,000 mortgage at 6.25% is $2,462.87 a month. A divorce spouse on a single income may simply not be able to pay the $720 a month to refinance the mortgage. This new refinanced mortgage presumes there’s no additional equity in the house which your spouse needs to be compensated for…which is unlikely for any house bought before 2020. Most ex-spouses who are willing to let their ex-spouse keep the marital home want their share of the house’s equity. This makes a higher-interest mortgage even more expensive. In lieu of refinancing the mortgage for the marital home in an Illinois divorce, one spouse can assume the mortgage. Assuming A Mortgage During Or After An Illinois Divorce To assume a mortgage is to “acqui[re ] real property coupled with the assumption of personal liability for debt secured by that property.” Black’s Law Dictionary (11th ed. 2019) When one spouse assumes the mortgage they get the whole house…and the whole mortgage. The other spouse’s name is removed from the deed to the house via a quitclaim deed and removed from the mortgage via a new contract with the lender. Lenders are not thrilled about mortgage assumptions. A mortgage assumption after a divorce is two working adults liable for one mortgage going to one working adult liable for one mortgage. Why would a lender want to allow that? Some government subsidized mortgages through the FHA, VA or FDA require that loans be assumable. Private lenders would prefer you refinance the mortgage at the new higher rates or pay off the loan if both parties are no longer willing to […]

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Quashing A Subpoena In An Illinois Divorce

A divorce represents a complete breakdown of trust between the two parties in a marriage. Due to this lack of trust, the parties involved in a divorce often need to verify information through third parties. The information requiring verification might include the parties’ income, assets, or even late-night activities. The requests for information are allowable so long as they have some relevancy to the divorce. “[A] party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action” Ill. Sup. Ct. R. 201(b)(1) In order to get a third party’s cooperation in providing documents to a litigant in an Illinois divorce, any Illinois lawyer can issue a subpoena at any time. “An attorney admitted to practice in the State of Illinois, as an officer of the court, may also issue subpoenas on behalf of the court for witnesses and to counties in a pending action.” 735 ILCS 5/2-1101 “[S]ubpoenas may be issued by an attorney admitted to practice in the State of Illinois who is currently counsel of record in the pending action. The subpoena may command the person to whom it is directed to produce documents or tangible things which constitute or contain evidence relating to any of the matters within the scope of the examination permitted under these rules” Ill. Sup. Ct. R. 204(a)(1) While the other party in the divorce is not receiving the subpoena, they must receive notice of the subpoena via a “Notice of Filing.” “[A] copy of any discovery request under these rules to any nonparty shall be filed with the clerk in accord with Rule 104(b)”  Ill. Sup. Ct. R. 201(o) “Filing of Documents and Proof of Service. Pleadings subsequent to the complaint, written motions, and other documents required to be filed shall be filed with the clerk with a certificate of counsel or other proof that the documents have been served on all parties who have appeared and have not theretofore been found by the court to be in default for failure to plead.” Ill. Sup. Ct. R. 104(b) The other party may not want the third party to disclose the requested information. However, the other party to an Illinois divorce does not control the third party and the third party’s ability or desire to produce the requested documents. In order to stop a third party from complying with a subpoena’s request, a motion to […]

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Forcing The Sale Of A Home, Business Or Asset In An Illinois Divorce

An Illinois divorce divides a couple’s property. Property is either deemed “marital” or “non-marital” by an Illinois court in order to determine whether a court can distribute that property between the parties. In an Illinois divorce, non-marital property automatically goes to the spouse who owns that property. “[T]he court shall assign each spouse’s non-marital property to that spouse.” 750 ILCS 5/503(d) Marital property, however, gets distributed by an Illinois divorce court. An Illinois divorce court “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503(d) Some parties to a divorce do not want any property, they just want the money. There is no faster way to resolve the distribution of marital property than selling the property. A temporary motion to sell an asset can begin the process of liquidating the marital estate. During an Illinois divorce, an Illinois divorce court is allowed or order “appropriate temporary relief including, in the discretion of the court, ordering the purchase or sale of assets and requiring that a party or parties borrow funds in the appropriate circumstances.” 750 ILCS 5/501(a)(3) Illinois divorce courts are reluctant to begin selling a couple’s assets before a final distribution of those assets. “[S]ection 501 authorizes the sale of an asset prior to final dissolution, but that is appropriate only in extraordinary circumstances, where such a sale is required to otherwise maintain the status quo prior to final dissolution.” In re Marriage of Gabrys, 2023 IL App (1st) 221763 In the final adjudication of an Illinois divorce, an Illinois divorce court can be convinced that selling marital property is the fairest way to determine that property’s value. “[O]rdering the properties sold and the proceeds split [is] the only realistic way to divide the parties’ assets in an equitable manner.” In re Marriage of Hamilton, 128 NE 3d 1237 – Ill: Appellate Court, 5th Dist. 2019 A sale of marital property also makes distributing the proceeds easier and probably fairer. Otherwise, a divorce court may estimate that a wife is entitled to the house, while the husband is entitled to the retirement accounts…when the two assets have totally different values. While an unequal division of marital assets is allowed, an inequitable division of assets is not permitted under Illinois law. “The [Illinois Marriage and Dissolution of Marriage] Act does not require an equal division of marital property, but an equitable division” In re […]

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Power Of Attorney vs. Guardianship In Illinois

Whether it’s medical treatment or managing their money, people who become disabled need someone to help them make big, complicated decisions. In Illinois, the concepts of Power of Attorney and guardianship allow a person to appoint or have appointed for them a person who can handle their affairs. Power of Attorney and guardianship are two Illinois statutory schemes that allow another person to handle the affairs of another with the authority of law. Power of Attorney is “[a]n instrument granting someone authority to act as agent or attorney-in-fact for the grantor” Black’s Law Dictionary (11th ed. 2019) In a Power of Attorney, all of the power to appoint an agent is with the individual who is appointing that agent. The Illinois Power Of Attorney Act “recognizes that each individual has the right to appoint an agent to make property, financial, personal, and health care decisions for the individual but that this right cannot be fully effective unless the principal may empower the agent to act throughout the principal’s lifetime, including during periods of disability, and have confidence that third parties will honor the agent’s authority at all times.” 755 ILCS 45/2-1 The power of attorney may even extend past the point of the individual being able to make their own decisions (which is why it can be confused with guardianship because those are the same conditions). “Unless the agency states an earlier termination date, the agency continues until the death of the principal, notwithstanding any lapse of time, the principal’s disability or incapacity or appointment of a guardian for the principal after the agency is signed.” 755 ILCS 45/2-5 “All acts of the agent within the scope of the agency during any period of disability, incapacity or incompetency of the principal have the same effect and inure to the benefit of and bind the principal and his or her successors in interest as if the principal were competent and not a person with a disability.”  755 ILCS 45/2-6 Power of Attorney exists independently of a court proceeding and can only rarely be undone by a court. “The statutory scheme makes it clear that this agency is strictly protected from judicial intervention except under a very narrow set of rigid procedural circumstances.” In re Estate of Beetler, 2017 IL App (3d) 160248 The procedure to gain Illinois court supervision of a power of attorney is explicit. “(a) Upon petition by any interested person (including […]

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Trial Separation And Divorce In Illinois

Divorce is a big step. Many couples will separate with the explicit option that they may, in fact, get back together. A non-permanent separation is called a trial separation. Some therapists will recommend trial separation in order to allow each member of the marriage think clearly about the future of the relationship. Trial separations, by their nature, may end in divorce. “Defendant suggested a trial separation, but her husband stated that if they were going to be separated, he would prefer a divorce.” Harris v. Harris, 360 NE 2d 113 – Ill: Appellate Court, 2nd Dist. 1977 What risks are there in engaging in a trial separation before a divorce? All Assets And Debts Acquired By Either Party Are Marital Until The Divorce Is Final In Illinois. Illinois divorce courts can only divide property that is classified as “marital”. Marital property is any property (or debt) which was acquired during the entire marriage. “‘[M]arital property’ means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 5/503(a) “For purposes of distribution of property, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed marital property.” 750 ILCS 5/503(b) Without filing a petition for dissolution of marriage or a petition for legal separation, a trial separation has no impact on division of assets in an Illinois divorce. “To hold that the parties did not accrue marital property after the date of [mere] physical separation would be to recognize “common law divorce,” and the law and public policy do not support such a result.” In re Marriage of Morris, 640 NE 2d 344 – Ill: Appellate Court, 2nd Dist. 1994 The assets you accumulate during a trial separation will be divided if you eventually get divorced. Likewise, the debts your spouse accumulates during the trial separation will be deemed marital assets and you will be responsible for a portion of those debts. Trial Separation May Constitute An Agreement To Waive Maintenance Every Illinois divorce court must consider maintenance (formerly known as alimony) “In a proceeding for dissolution of marriage, legal separation, declaration of invalidity of marriage, or dissolution of a civil union, a proceeding for maintenance following a legal separation…the court may grant a maintenance award for either spouse in amounts and for periods of time as the court deems […]

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When is Divorce Mediation Not Recommended?

In a perfect world there would be no divorce lawyers. At the end of their relationship, people would simply go to a mediator who would calmly and rationally divide their assets, calculate support and determine parenting time. While some divorcing couples do use mediators to finalize the terms of their divorce, the majority of divorcing people (in my experience) use divorce lawyers to enforce their rights under the law. When is divorce mediation a viable option for divorcing Illinois couples? When is divorce mediation not recommended for divorcing Illinois couples? When Is Divorce Mediation Not Recommended In Illinois? Mediation only works if both parties are being completely transparent. A mediator cannot divide assets that one party is not aware of. A mediator cannot calculate support if one of the party’s incomes is not completely known. A mediator cannot even advise as to what a divorcing person’s rights are (even though they could look them up on my website). “No person shall receive any compensation directly or indirectly for any legal services other than a regularly licensed attorney” 705 ILCS 205/1 In reality, the most a mediator can provide two people trying to settle their divorce in Illinois is a “memorandum of understanding” memorializing the meeting of the minds that the parties arrived at. That memorandum of understanding can then be formalized by an attorney or by the parties themselves as a Marital Settlement Agreement and/or an Agreed Allocation of Parenting Time and Parental Responsibilities. The subsequent steps to actually “prove up” the divorce through the courts must then be taken, again, without a mediator. The memorandum of understanding is not an actual agreement. The memorandum of understanding is not even binding on the parties. Every county has its own rules about mediation. Cook County defines mediation explicitly. “”Mediation” means a non-binding confidential process by which a neutral third party, selected by the parties to the case or selected by or with the assistance of the court, assists the parties in reaching a mutually acceptable agreement ” Rule 13.4(e) While mediation is “non-binding”, it’s also “confidential.” “Mediation communications shall be confidential and privileged, not subject to discovery or admissible in evidence in accordance with the provisions of the Uniform Mediation Act, 710 ILCS 35/1, et seq.” Cook County Rule 13.4(e)(ix)(a) A party to a divorce, cannot even use some of the mediated agreement or communications that let to the agreement in a court […]

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