New York Divorce & Family Law

By: David Siegel

The award of attorney fees and the amount to be paid by the parties is within the discretion of the trial court and will not be disturbed absent a clear showing of an abuse of discretion. An award of attorney fees in an Illinois divorce proceeding is ordinarily in the nature of support. Attorney fees may be awarded to a litigant only when they are expressly authorized by statute or by agreement of the parties, and a trial court is bound by the statutory grant. The allowance of attorney fees is within the sound discretion of the court. Under this section the legislature has provided the circuit court with the authority to award attorney fees incurred by either spouse in connection with proceedings under this Act.

A court may order the other spouse to pay a reasonable amount for attorney fees for services rendered in a proceeding under this Act, including the defense of appeals from post-judgment orders or petitions seeking relief from final judgments under the Act. This section authorizes an attorney in a pending dissolution proceeding to recover his earned fees from either his own client or the other party. The general rule is that a party seeking an award of attorney fees must show his own financial inability to pay and the financial ability of the other spouse; however, a party who must use judicial process to obtain compliance with the terms of a decree of dissolution is entitled to reasonable attorney fees, even absent a showing of his own ability to pay.

The Act contains no language limiting the trial court's authority to award attorney fees when presented with a proper fee petition. To justify an award of attorney fees, the party seeking relief must demonstrate financial inability to pay and the ability of the other spouse to do so. An award of attorney fees is justified where the spouse seeking relief demonstrates: (1) financial inability to pay, and (2) the ability of the other spouse to pay. Financial inability exists where payment would strip the person of the means of support and undermine her economic stability.

While the trial court should consider the property received by each party and their overall economic status before allocating responsibility for payment of attorney's fees, there is nothing in this section to prohibit the trial court from requiring the petition on fees to be filed and the hearing to be held prior to the disposition of the property and maintenance/child support issues. This section has been construed to authorize prospective fee awards in appropriate circumstances, but such awards should be made cautiously.

The allowance of attorney fees and costs in exercising its discretion, the court may consider, in addition to the abilities of the parties to pay, the questions at issue, the significance or importance of the subject matter, the degree of responsibility involved, the standing and skill of the person employed, and the time and labor involved. An award of attorney fees is not mandatory, but discretionary. Under New York divorce law, the responsibility to pay attorney fees is generally determined by the relative income of the parties. Although subsection (a) allows for an award of attorney fees made in connection with the defense of an appeal, it has no specific provision to negate the general rule that the filing of a notice of appeal deprives the trial court of further jurisdiction.

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