The June 30 appellate court opinion in Marriage of Shen addresses many different family law topics. One issue is attorney fee contribution from one spouse to another as part of the divorce.
The Shen divorce went to a multi-day trial. After trial ended, the wife filed a petition seeking the husband’s contribution to her attorney fees. The wife had retained five (!!) different law firms to represent her and paid them over $19,000 total. During the divorce the wife filed bankruptcy and discharged any fees she owed to that point. The wife’s post-bankruptcy attorney fees in the divorce totaled about $28,000.
Under Illinois statutory and case law, each spouse in a divorce is primarily and generally responsible to pay his or her own attorney fees. To obtain contribution, the spouse requesting it must show an inability to pay, while the other spouse must have the ability to pay. Attorney fees also must be reasonably and necessarily incurred.
The Shen court found the wife clearly had no ability to pay her own attorneys fees. However, the husband still had to pay his own attorney fees, was required to pay maintenance to the wife, and was ordered to pay a larger share of the marital debts. Although the husband was working, his expenses exceeded his income. The husband did not have the ability to pay the wife’s attorney fees, so her request for his contribution was properly denied.
In many divorces, one spouse does not have the ability to afford protracted litigation. Illinois law allows a court to order a financially advantaged spouse to pay for the other spouse’s attorney fees, both during and after the divorce. The Shen court correctly determined that the inquiry on divorce fee contribution does not end with financial inability of one spouse. The financial ability, and sometimes inability, of the other spouse is definitely relevant. In Shen, like some other divorces, neither party had the financial ability to pay for attorney fees.