Can’t Afford to Retain an Attorney for a Chicago Divorce, But Your Spouse Can?

Has your spouse filed for divorce in Chicago and left with you no money to retain an attorney of your own? Has your previous attorney, who you spent all your money on to retain, withdraw as your legal counsel leaving you with the daunting possibility of having to file a pro se appearance (and represent yourself) due to lack of funds? Well, as of 2022, you are in luck!

If you are in the midst of a Chicago divorce or you are just now starting to meet with various attorneys, and you are without the funds to hire an attorney, you have likely been made aware that you may be eligible to seek attorneys’ fees from your spouse. However, you have likely been told that the only way to seek these fees is to first hire counsel and allow them to file a pleading on your behalf. But, what happens if you are unable to even retain the attorney in the first place? As of 2022, Illinois has revised the statute on interim and prospective attorneys’ to allow parties to petition the Court to seek their initial retainer amount from their spouse.

Pursuant to the Illinois Marriage and Dissolution of Marriage Act, a litigant may now seek attorneys’ fees in order to start the litigation process. Specifically, 750 ILCS 5/501 states:

“As used in this subsection (c-1), “interim attorney’s fees and costs” means attorney’s fees and costs, including an allowance from the other party for a retainer fee to obtain an attorney, assessed from time to time while a case is pending, in favor of the petitioning party’s current counsel, for reasonable fees and costs either already incurred or to be incurred, and “interim award” means an award of interim attorney’s fees and costs, including an allowance from the other party for a retainer fee to obtain an attorney.” (750 ILCS 5/501) (Emphasis added).

If you are considering seeking an award of your initial retainer, it is important that you first consider whether or not you are eligible for such an award. In Chicago, the Court will look at various factors in considering whether a fee award is appropriate. Specifically, the court will consider factors such as:

1.       The income and property of both parties. Specifically,  whether one party earns significantly more than the other or holds all the assets (marital or non-marital) and is therefore able to afford his/her own fees while the other party is left at a disadvantage. If this is the case, the court is likely to consider an award of the fees for a retainer appropriate.

2.      The needs of each party.

3.      The realistic earning capacity of each party

4.      Any impairment to the present earning capacity of each party

5.      That standard of living during the marriage

6.      The complexity of the issues at hand

7.      Each party’s access to information

8.     The amount of payment or payments reasonably expected to be made.

If you are considering seeking an initial retainer award from the Court it is important that you already have an attorney picked out who can make this request on your behalf as the Court will order that the payment be made directly to the attorney/law firm you are seeking to hire. It is important to note that the Court will not allow the award to be made directly to the litigant to ensure that the parties are not attempting to defraud the courts and gain an unfair distribution from the marital estate.

If you are afraid of not being able to afford an attorney, but know your spouse is able to, contact Ward Family Law, LLC today. Our consultations are free, and we would love to discuss whether you are eligible for an interim fee award to assist you in your retainer.  Reach out to our Founder, Jennifer R. Ward, via email at jward@wardfamilylawchicago.com today to schedule your initial consultation.