Thursday, October 8, 2009

Attorney Fees in Family Law Cases

Dear bloggers:

I read the following article from Helen Gunnarsson of the Illinois State Bar Association and I thought you might find it as interesting as I did. There also could be some bankruptcy implications as to the dischargeability of attorney fees. Nevertheless, Ms. Gunnarsson reports:

"Woodstock lawyer Paulette Gray has found the provisions of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et seq) on attorney fees unclear and confusing for the more than dozen years she’s been practicing family law. With the support of ISBA, she and the rest of ISBA’s Family Law Section Council have now done something about it: legislation they drafted to clear up the statute’s inconsistencies has now been signed into law as PA 96-583, which takes effect on January 1, 2010.

Attorney fees in non-divorce cases

A principal problem, Gray explains, is that the IMDMA’s fee provisions were written as if referring only to divorce cases. But some provisions apply not only to attorney fees in dissolution of marriage proceedings but also to cases under the Parentage Act of 1984, see 750 ILCS 45/17, and to post-dissolution proceedings such as enforcement or modification actions respecting child custody, visitation, and support, as well as appeals.

As the statute currently reads, Gray says, it’s unclear whether section 501 (c-1)(1), governing interim attorney fees, can apply to post-decree proceedings, appeals, or parentage cases. Likewise fuzzy are other procedures, she continues, including what parties must present to the court for interim fee petitions and whether counsel may continue to represent their clients on appeals where issues of fee allocation remain outstanding.

The new public act modifies sections 501, 503, and 508 of the IMDMA. Subsection (c-1)(1) of section 501, which governs temporary relief and refers to “the marriage” and “the marital estate,” has been amended to clarify that its provisions apply only to pre-judgment dissolution proceedings. A sentence has also been added to that subsection requiring courts to schedule all hearings for or relating to interim attorney’s fees and costs under that subsection in an expeditious manner.

Subsection (d)(1) of section 503, which governs the disposition of property in a proceeding for dissolution of marriage, has been modified to refer back to section 501(c-1)(2). As amended, the statute will provide that, when dividing the parties’ marital property, courts are to consider any diminution in value of marital or nonmarital property resulting from a payment for interim attorney fees that is deemed to have been an advance from the parties’ marital estate under section 501(c-1)(2).

Section 508, governing attorney’s fees and clients’ rights and responsibilities respecting fees and costs, has been modified to clarify that interim attorney’s fees may be awarded from one party to the other not only in pre-judgment dissolution proceedings, but also “in any other proceeding under this subsection,” meaning, Gray notes, post-judgment proceedings, appeals, and actions under the Parentage Act of 1984.

Affidavits for interim-fee petitions

The new act also amends section 508(a) to conform the letter of the law with the practice in most courts, says Gray, by explicitly requiring petitions relating to interim fees and costs to have attached an affidavit regarding the factual basis for the relief requested. She explains that the general practice for interim fee petitions has long been for courts to hold non-evidentiary hearings and decide the petitions based on the facts contained in attached affidavits. Until now, however, the statute has not required affidavits.

Gray also notes a word substitution in section 508(b). Among other things, this provision currently requires a court to allocate attorney’s fees and costs to a party or counsel found to have acted improperly “if at any time a court finds that a hearing under this Section was precipitated or conducted for any improper purpose.” In substituting the word “Act” for “Section,” the new statute substantially discourages vengeful or petty litigiousness, Gray believes.

The new public act also amends section 508(c)(5) to provide for tolling the deadline for filing a final fee petition or praecipe for a fee hearing if a motion under section 2-1203 of the Code of Civil Procedure or a notice of appeal is filed. Without this change, Gray says, counsel wishing to file a fee petition would have to withdraw because of ethical considerations if the case were appealed. This change, therefore, permits the same counsel to handle their clients’ appeals and provides needed flexibility for filing final fee petitions, she says.

Finally, section 508(d) has been amended to eliminate the requirement of attaching itemized attorney billing statements to petitions for entry of consent judgments in favor of simple representations from counsel and affidavits from clients that they received those statements. Noting that billing statements in family law cases may cover years of litigation and, thus, be extremely bulky, Gray suggests that this amendment makes sense from both cost and environmental perspectives.

Gray acknowledges that the IMDMA remains cumbersome. Absent a comprehensive rewriting of the statute, however, the changes PA 96-583 makes will, she believes, clarify practice regarding awards of attorney’s fees under the statute. "

Warmest Regards,

Bob Schaller

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By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm

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