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1 | AN ACT concerning civil law.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 5. The Illinois Marriage and Dissolution of | |||||||||||||||||||||||
5 | Marriage Act is amended by changing Sections 501, 503, and 508 | |||||||||||||||||||||||
6 | as follows:
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7 | (750 ILCS 5/501) (from Ch. 40, par. 501)
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8 | Sec. 501.
Temporary Relief.) In all proceedings under this | |||||||||||||||||||||||
9 | Act,
temporary relief shall be as follows:
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10 | (a) Either party may move for:
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11 | (1) temporary maintenance or temporary support of a | |||||||||||||||||||||||
12 | child of the
marriage entitled to support, accompanied by | |||||||||||||||||||||||
13 | an affidavit as to the
factual basis for the relief | |||||||||||||||||||||||
14 | requested;
| |||||||||||||||||||||||
15 | (2) a temporary restraining order or preliminary | |||||||||||||||||||||||
16 | injunction, accompanied
by affidavit showing a
factual | |||||||||||||||||||||||
17 | basis for any of the following relief:
| |||||||||||||||||||||||
18 | (i) restraining any person from transferring, | |||||||||||||||||||||||
19 | encumbering,
concealing or otherwise disposing of any | |||||||||||||||||||||||
20 | property except in the usual
course of business or for | |||||||||||||||||||||||
21 | the necessities of life, and, if so
restrained, | |||||||||||||||||||||||
22 | requiring him to notify the moving party and his | |||||||||||||||||||||||
23 | attorney of
any proposed extraordinary expenditures |
| |||||||
| |||||||
1 | made after the order is issued;
| ||||||
2 | (ii) enjoining a party from removing a child from | ||||||
3 | the jurisdiction
of the court;
| ||||||
4 | (iii) enjoining a party from striking or | ||||||
5 | interfering with the
personal liberty of the other | ||||||
6 | party or of any child; or
| ||||||
7 | (iv) providing other injunctive relief proper in | ||||||
8 | the circumstances;
or
| ||||||
9 | (3) other appropriate temporary relief.
| ||||||
10 | (b) The court may issue a temporary restraining order | ||||||
11 | without
requiring notice to the other party only if it finds, | ||||||
12 | on the basis of
the moving affidavit or other evidence, that | ||||||
13 | irreparable injury will
result to the moving party if no order | ||||||
14 | is issued until the time for
responding has elapsed.
| ||||||
15 | (c) A response hereunder may be filed within 21 days after | ||||||
16 | service
of notice of motion or at the time specified in the | ||||||
17 | temporary
restraining order.
| ||||||
18 | (c-1) As used in this subsection (c-1), "interim attorney's | ||||||
19 | fees and
costs" means attorney's fees and costs
assessed
from | ||||||
20 | time to time while a case is pending, in favor of the | ||||||
21 | petitioning party's
current counsel, for reasonable fees and | ||||||
22 | costs either already incurred or to be
incurred, and "interim | ||||||
23 | award" means an award of interim attorney's fees and
costs. | ||||||
24 | Interim awards shall be governed by the following:
| ||||||
25 | (1) Except for good cause shown, a proceeding for (or | ||||||
26 | relating to) interim
attorney's fees and costs in a |
| |||||||
| |||||||
1 | pre-judgment dissolution proceeding shall be | ||||||
2 | nonevidentiary , and summary in nature , and
expeditious . | ||||||
3 | All hearings for or relating to interim attorney's fees and | ||||||
4 | costs under this subsection shall be scheduled | ||||||
5 | expeditiously by the court. When a party files a petition | ||||||
6 | for interim attorney's fees and
costs supported by one or | ||||||
7 | more
affidavits that delineate relevant factors, the court | ||||||
8 | (or a hearing officer)
shall assess an interim award after | ||||||
9 | affording the opposing party a reasonable
opportunity to | ||||||
10 | file a responsive pleading. A responsive pleading shall set | ||||||
11 | out
the amount of each retainer or other payment or | ||||||
12 | payments, or both, previously
paid to the responding | ||||||
13 | party's counsel by or on behalf of the responding party.
In | ||||||
14 | assessing an
interim award, the court shall consider all | ||||||
15 | relevant factors, as presented,
that appear reasonable and | ||||||
16 | necessary, including to the extent applicable :
| ||||||
17 | (A) the income and property of each party, | ||||||
18 | including alleged marital
property within the sole | ||||||
19 | control of one party and alleged non-marital property
| ||||||
20 | within access to a party;
| ||||||
21 | (B) the needs of each party;
| ||||||
22 | (C) the realistic earning capacity of each party;
| ||||||
23 | (D) any impairment to present earning capacity of | ||||||
24 | either party,
including
age and physical and emotional | ||||||
25 | health;
| ||||||
26 | (E) the standard of living established during the |
| |||||||
| |||||||
1 | marriage;
| ||||||
2 | (F) the degree of complexity of the issues, | ||||||
3 | including custody, valuation
or division (or both) of | ||||||
4 | closely held businesses, and tax planning, as well as
| ||||||
5 | reasonable needs for expert investigations or expert | ||||||
6 | witnesses, or both;
| ||||||
7 | (G) each party's access to relevant information;
| ||||||
8 | (H) the amount of the payment or payments made or | ||||||
9 | reasonably expected to
be made to the attorney for the | ||||||
10 | other party; and
| ||||||
11 | (I) any other factor that the court expressly finds | ||||||
12 | to be just and
equitable.
| ||||||
13 | (2) Any assessment of an interim award (including one | ||||||
14 | pursuant to an
agreed
order) shall be without prejudice to | ||||||
15 | any final allocation and without prejudice
as to any claim | ||||||
16 | or right of either party or any counsel of record at the | ||||||
17 | time
of the award. Any such claim or right may be presented | ||||||
18 | by the appropriate
party or counsel at a hearing on | ||||||
19 | contribution under subsection (j) of Section
503 or a | ||||||
20 | hearing on counsel's fees under subsection (c) of Section | ||||||
21 | 508. Unless
otherwise ordered by the court at the final | ||||||
22 | hearing between the parties or in a
hearing under | ||||||
23 | subsection (j) of Section 503 or subsection (c) of
Section | ||||||
24 | 508, interim awards, as well as the aggregate of all other | ||||||
25 | payments
by each party
to
counsel and related payments to | ||||||
26 | third parties, shall be deemed to have been
advances from |
| |||||||
| |||||||
1 | the parties' marital estate. Any portion of any interim | ||||||
2 | award
constituting an overpayment shall be remitted back to | ||||||
3 | the appropriate party or
parties, or, alternatively, to | ||||||
4 | successor counsel, as the court determines and
directs, | ||||||
5 | after notice.
| ||||||
6 | (3) In any proceeding under this subsection (c-1), the | ||||||
7 | court (or hearing
officer) shall assess an interim award | ||||||
8 | against an opposing party in an
amount necessary to enable | ||||||
9 | the petitioning party to participate adequately in
the | ||||||
10 | litigation, upon findings that the party from whom | ||||||
11 | attorney's fees and
costs are sought has the financial | ||||||
12 | ability to pay reasonable amounts and that
the party | ||||||
13 | seeking attorney's fees and costs lacks sufficient access | ||||||
14 | to assets
or income to pay reasonable amounts. In | ||||||
15 | determining an award, the
court shall consider whether | ||||||
16 | adequate participation in the litigation requires
| ||||||
17 | expenditure of more fees and costs for a party that is not | ||||||
18 | in control of assets
or relevant information. Except for | ||||||
19 | good cause shown, an interim award shall
not be less than | ||||||
20 | payments made or reasonably expected to be made to the | ||||||
21 | counsel
for the other party. If the court finds that both | ||||||
22 | parties
lack financial ability or access to assets or | ||||||
23 | income for reasonable attorney's
fees and costs, the court | ||||||
24 | (or hearing officer) shall enter an order that
allocates | ||||||
25 | available funds for each party's counsel, including | ||||||
26 | retainers or
interim payments, or both, previously paid, in |
| |||||||
| |||||||
1 | a manner that achieves
substantial parity between the | ||||||
2 | parties.
| ||||||
3 | (4) The changes to this Section 501 made by this | ||||||
4 | amendatory Act of 1996
apply to cases pending on or after | ||||||
5 | June 1, 1997, except as otherwise provided
in Section 508.
| ||||||
6 | (d) A temporary order entered under this Section:
| ||||||
7 | (1) does not prejudice the rights of the parties or the | ||||||
8 | child which
are to be adjudicated at subsequent hearings in | ||||||
9 | the proceeding;
| ||||||
10 | (2) may be revoked or modified before final judgment, | ||||||
11 | on a showing
by affidavit and upon hearing; and
| ||||||
12 | (3) terminates when the final judgment is entered or | ||||||
13 | when the
petition for dissolution of marriage or legal | ||||||
14 | separation or declaration
of invalidity of marriage is | ||||||
15 | dismissed.
| ||||||
16 | (Source: P.A. 89-712, eff. 6-1-97.)
| ||||||
17 | (750 ILCS 5/503) (from Ch. 40, par. 503)
| ||||||
18 | Sec. 503. Disposition of property.
| ||||||
19 | (a) For purposes of this Act, "marital property" means all | ||||||
20 | property acquired
by either spouse subsequent to the marriage, | ||||||
21 | except the following, which is
known as "non-marital property":
| ||||||
22 | (1) property acquired by gift, legacy or descent;
| ||||||
23 | (2) property acquired in exchange for property | ||||||
24 | acquired before the
marriage or in exchange for property | ||||||
25 | acquired by gift, legacy or descent;
|
| |||||||
| |||||||
1 | (3) property acquired by a spouse after a judgment of | ||||||
2 | legal separation;
| ||||||
3 | (4) property excluded by valid agreement of the | ||||||
4 | parties;
| ||||||
5 | (5) any judgment or property obtained by judgment | ||||||
6 | awarded to a spouse
from the other spouse;
| ||||||
7 | (6) property acquired before the marriage;
| ||||||
8 | (7) the increase in value of property acquired by a | ||||||
9 | method listed in
paragraphs (1) through (6) of this | ||||||
10 | subsection, irrespective of whether the
increase results | ||||||
11 | from a contribution of marital property, non-marital | ||||||
12 | property,
the personal effort of a spouse, or otherwise, | ||||||
13 | subject to the right of
reimbursement provided in | ||||||
14 | subsection (c) of this Section; and
| ||||||
15 | (8) income from property acquired by a method listed in | ||||||
16 | paragraphs (1)
through (7) of this subsection if the income | ||||||
17 | is not attributable to the
personal effort of a spouse.
| ||||||
18 | (b)(1) For purposes of distribution of property pursuant to | ||||||
19 | this
Section, all property acquired by either spouse after the | ||||||
20 | marriage and before a
judgment of dissolution of marriage or | ||||||
21 | declaration of invalidity of marriage,
including non-marital | ||||||
22 | property transferred into some form of co-ownership
between the | ||||||
23 | spouses, is presumed to be marital property, regardless of | ||||||
24 | whether
title is held individually or by the spouses in some | ||||||
25 | form of co-ownership such
as joint tenancy, tenancy in common, | ||||||
26 | tenancy by the entirety, or community
property. The presumption |
| |||||||
| |||||||
1 | of marital property is overcome by a showing that
the property | ||||||
2 | was acquired by a method listed in subsection (a) of this | ||||||
3 | Section.
| ||||||
4 | (2) For purposes of distribution of property pursuant to | ||||||
5 | this Section,
all pension benefits (including pension benefits | ||||||
6 | under the Illinois Pension
Code) acquired by either spouse | ||||||
7 | after the marriage and before a judgment of
dissolution of | ||||||
8 | marriage or declaration of invalidity of the marriage are
| ||||||
9 | presumed to be marital property, regardless of which spouse | ||||||
10 | participates in the
pension plan. The presumption that these | ||||||
11 | pension benefits are marital property
is overcome by a showing | ||||||
12 | that the pension benefits were acquired by a method
listed in | ||||||
13 | subsection (a) of this Section. The right to a division of | ||||||
14 | pension
benefits in just proportions under this Section is | ||||||
15 | enforceable under Section
1-119 of the Illinois Pension Code.
| ||||||
16 | The value of pension benefits in a retirement system | ||||||
17 | subject to the Illinois
Pension Code shall be determined in | ||||||
18 | accordance with the valuation procedures
established by the | ||||||
19 | retirement system.
| ||||||
20 | The recognition of pension benefits as marital property and | ||||||
21 | the division of
those benefits pursuant to a Qualified Illinois | ||||||
22 | Domestic Relations Order shall
not be deemed to be a | ||||||
23 | diminishment, alienation, or impairment of those
benefits. The | ||||||
24 | division of pension benefits is an allocation of property in
| ||||||
25 | which each spouse has a species of common ownership.
| ||||||
26 | (3) For purposes of distribution of property under this |
| |||||||
| |||||||
1 | Section, all stock
options granted to either spouse after the | ||||||
2 | marriage and before a judgment of
dissolution of marriage or | ||||||
3 | declaration of invalidity of marriage, whether
vested or | ||||||
4 | non-vested or whether their value is ascertainable, are | ||||||
5 | presumed to
be marital property. This presumption of marital | ||||||
6 | property is overcome by a
showing that the stock options were | ||||||
7 | acquired by a method listed in subsection
(a) of this Section. | ||||||
8 | The court shall allocate stock options between the
parties at | ||||||
9 | the time of the judgment of dissolution of marriage or | ||||||
10 | declaration
of invalidity of marriage recognizing that the | ||||||
11 | value of the stock options may
not be then determinable and | ||||||
12 | that the actual division of the options may not
occur until a | ||||||
13 | future date. In making the allocation between the parties, the
| ||||||
14 | court shall consider, in addition to the factors set forth in | ||||||
15 | subsection (d) of
this Section, the following:
| ||||||
16 | (i) All circumstances underlying the grant of the stock | ||||||
17 | option including
but not limited to whether the grant was | ||||||
18 | for past, present, or future efforts,
or any combination | ||||||
19 | thereof.
| ||||||
20 | (ii) The length of time from the grant of the option to | ||||||
21 | the time the
option is exercisable.
| ||||||
22 | (c) Commingled marital and non-marital property shall be | ||||||
23 | treated in
the following manner, unless otherwise agreed by the | ||||||
24 | spouses:
| ||||||
25 | (1) When marital and non-marital property are | ||||||
26 | commingled by contributing
one estate of property into |
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| |||||||
1 | another resulting in a loss of identity of the
contributed | ||||||
2 | property, the classification of the contributed property | ||||||
3 | is
transmuted to the estate receiving the contribution, | ||||||
4 | subject to the provisions
of paragraph (2) of this | ||||||
5 | subsection; provided that if marital and non-marital
| ||||||
6 | property are commingled into newly acquired property | ||||||
7 | resulting in a loss
of identity of the contributing | ||||||
8 | estates, the commingled property shall be
deemed | ||||||
9 | transmuted to marital property, subject to the provisions | ||||||
10 | of paragraph
(2) of this subsection.
| ||||||
11 | (2) When one estate of property makes a contribution to | ||||||
12 | another estate
of property, or when a spouse contributes | ||||||
13 | personal effort to non-marital
property, the contributing | ||||||
14 | estate shall be reimbursed from the estate receiving
the | ||||||
15 | contribution notwithstanding any transmutation; provided, | ||||||
16 | that no such
reimbursement shall be made with respect to a | ||||||
17 | contribution which is not
retraceable by clear and | ||||||
18 | convincing evidence, or was a gift, or, in the
case of a | ||||||
19 | contribution of personal effort of a spouse to non-marital | ||||||
20 | property,
unless the effort is significant and results in | ||||||
21 | substantial appreciation
of the non-marital property. | ||||||
22 | Personal effort of a spouse shall be deemed
a contribution | ||||||
23 | by the marital estate. The court may provide for | ||||||
24 | reimbursement
out of the marital property to be divided or | ||||||
25 | by imposing a lien against the
non-marital property which | ||||||
26 | received the contribution.
|
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| |||||||
1 | (d) In a proceeding for dissolution of marriage or | ||||||
2 | declaration of invalidity
of marriage, or in a proceeding for | ||||||
3 | disposition of property following
dissolution of marriage by a | ||||||
4 | court which lacked personal jurisdiction over the
absent spouse | ||||||
5 | or lacked jurisdiction to dispose of the property, the court
| ||||||
6 | shall assign each spouse's non-marital property to that spouse. | ||||||
7 | It also shall
divide the marital property without regard to | ||||||
8 | marital misconduct in just
proportions considering all | ||||||
9 | relevant factors, including:
| ||||||
10 | (1) the contribution of each party to the acquisition, | ||||||
11 | preservation, or
increase or decrease in value of the | ||||||
12 | marital or non-marital property, including
(i) any such | ||||||
13 | decrease attributable to a payment deemed to have been an | ||||||
14 | advance from the parties' marital estate under subsection | ||||||
15 | (c-1)(2) of Section 501 and (ii) the contribution of a | ||||||
16 | spouse as a homemaker or to the family unit;
| ||||||
17 | (2) the dissipation by each party of the marital or | ||||||
18 | non-marital property;
| ||||||
19 | (3) the value of the property assigned to each spouse;
| ||||||
20 | (4) the duration of the marriage;
| ||||||
21 | (5) the relevant economic circumstances of each spouse | ||||||
22 | when the division
of property is to become effective, | ||||||
23 | including the desirability of awarding
the family home, or | ||||||
24 | the right to live therein for reasonable periods, to the
| ||||||
25 | spouse having custody of the children;
| ||||||
26 | (6) any obligations and rights arising from a prior |
| |||||||
| |||||||
1 | marriage
of either party;
| ||||||
2 | (7) any antenuptial agreement of the parties;
| ||||||
3 | (8) the age, health, station, occupation, amount and | ||||||
4 | sources of income,
vocational skills, employability, | ||||||
5 | estate, liabilities, and needs of each of the
parties;
| ||||||
6 | (9) the custodial provisions for any children;
| ||||||
7 | (10) whether the apportionment is in lieu of or in | ||||||
8 | addition to
maintenance;
| ||||||
9 | (11) the reasonable opportunity of each spouse for | ||||||
10 | future acquisition
of capital assets and income; and
| ||||||
11 | (12) the tax consequences of the property division upon | ||||||
12 | the
respective economic circumstances of the parties.
| ||||||
13 | (e) Each spouse has a species of common ownership in the | ||||||
14 | marital property
which vests at the time dissolution | ||||||
15 | proceedings are commenced and continues
only during the | ||||||
16 | pendency of the action. Any such interest in marital property
| ||||||
17 | shall not encumber that property so as to restrict its | ||||||
18 | transfer, assignment
or conveyance by the title holder unless | ||||||
19 | such title holder is specifically
enjoined from making such | ||||||
20 | transfer, assignment or conveyance.
| ||||||
21 | (f) In a proceeding for dissolution of marriage or | ||||||
22 | declaration of
invalidity of marriage or in a proceeding for | ||||||
23 | disposition of property
following dissolution of marriage by a | ||||||
24 | court that lacked personal
jurisdiction over the absent spouse | ||||||
25 | or lacked jurisdiction to dispose of
the property, the court, | ||||||
26 | in determining the value of the marital and
non-marital |
| |||||||
| |||||||
1 | property for purposes of dividing the property, shall value the
| ||||||
2 | property as of the date of trial or some other date as close to | ||||||
3 | the date
of trial as is practicable.
| ||||||
4 | (g) The court if necessary to protect and promote the best | ||||||
5 | interests of the
children may set aside a portion of the | ||||||
6 | jointly or separately held
estates of the parties in a separate | ||||||
7 | fund or trust for the support,
maintenance, education, physical | ||||||
8 | and mental health, and general welfare of any minor, dependent,
| ||||||
9 | or incompetent child of the parties. In making a determination | ||||||
10 | under this
subsection, the court may consider, among other | ||||||
11 | things, the conviction of a
party of any of the offenses set | ||||||
12 | forth in Section 12-3.3, 12-4, 12-4.1,
12-4.2, 12-4.3,
12-13, | ||||||
13 | 12-14, 12-14.1, 12-15, or 12-16 of the Criminal Code of 1961 if | ||||||
14 | the
victim is a
child of one or both of the parties, and there | ||||||
15 | is a need for, and cost of,
care, healing and counseling for | ||||||
16 | the child who is the victim of the crime.
| ||||||
17 | (h) Unless specifically directed by a reviewing court, or | ||||||
18 | upon good
cause shown, the court shall not on remand consider | ||||||
19 | any increase or
decrease in the value of any "marital" or | ||||||
20 | "non-marital" property occurring
since the assessment of such | ||||||
21 | property at the original trial or hearing, but
shall use only | ||||||
22 | that assessment made at the original trial or hearing.
| ||||||
23 | (i) The court may make such judgments affecting the marital | ||||||
24 | property
as may be just and may enforce such judgments by | ||||||
25 | ordering a sale of marital
property, with proceeds therefrom to | ||||||
26 | be applied as determined by the court.
|
| |||||||
| |||||||
1 | (j) After proofs have closed in the final hearing on all | ||||||
2 | other issues
between the parties (or in conjunction with the | ||||||
3 | final hearing, if all parties
so stipulate) and before judgment | ||||||
4 | is entered, a party's petition for
contribution to fees and | ||||||
5 | costs incurred in the proceeding shall be heard and
decided, in | ||||||
6 | accordance with the following provisions:
| ||||||
7 | (1) A petition for contribution, if not filed before | ||||||
8 | the final hearing
on other issues between the parties, | ||||||
9 | shall be filed no later than 30 days after
the closing of | ||||||
10 | proofs in the final hearing or within such other period as | ||||||
11 | the
court orders.
| ||||||
12 | (2) Any award of contribution to one party from the | ||||||
13 | other party shall be
based on the criteria for division of | ||||||
14 | marital property under this Section 503
and, if maintenance | ||||||
15 | has been awarded, on the criteria for an award of
| ||||||
16 | maintenance under Section 504.
| ||||||
17 | (3) The filing of a petition for contribution shall not | ||||||
18 | be deemed to
constitute a waiver of the attorney-client | ||||||
19 | privilege between the petitioning
party and current or | ||||||
20 | former counsel; and such a waiver shall not constitute a
| ||||||
21 | prerequisite to a hearing for contribution. If either | ||||||
22 | party's presentation on
contribution, however, includes | ||||||
23 | evidence within the scope of the
attorney-client | ||||||
24 | privilege, the disclosure or disclosures shall be narrowly
| ||||||
25 | construed and shall not be deemed by the court to | ||||||
26 | constitute a general waiver
of the privilege as to matters |
| |||||||
| |||||||
1 | beyond the scope of the presentation.
| ||||||
2 | (4) No finding on which a contribution award is based | ||||||
3 | or denied shall be
asserted against counsel or former | ||||||
4 | counsel for purposes of any hearing under
subsection (c) or | ||||||
5 | (e) of Section 508.
| ||||||
6 | (5) A contribution award (payable to either the | ||||||
7 | petitioning
party or the party's counsel, or jointly, as | ||||||
8 | the court determines) may be in
the form of either a set | ||||||
9 | dollar amount or a percentage of fees and costs (or a
| ||||||
10 | portion of fees and costs) to be subsequently agreed upon | ||||||
11 | by the petitioning
party and counsel or, alternatively, | ||||||
12 | thereafter determined in a hearing
pursuant to subsection | ||||||
13 | (c) of Section 508 or previously or thereafter
determined | ||||||
14 | in an independent proceeding under subsection (e) of | ||||||
15 | Section
508.
| ||||||
16 | (6) The changes to this Section 503 made by this | ||||||
17 | amendatory Act of 1996
apply to cases pending on or after | ||||||
18 | June 1, 1997, except as otherwise provided
in Section 508.
| ||||||
19 | (Source: P.A. 95-374, eff. 1-1-08.)
| ||||||
20 | (750 ILCS 5/508) (from Ch. 40, par. 508)
| ||||||
21 | Sec. 508. Attorney's Fees; Client's Rights and | ||||||
22 | Responsibilities Respecting
Fees and
Costs.
| ||||||
23 | (a) The court from time to time, after due notice and | ||||||
24 | hearing, and after
considering the financial resources of the | ||||||
25 | parties, may order any party to
pay a reasonable amount for his |
| |||||||
| |||||||
1 | own or the other party's costs and
attorney's fees. Interim | ||||||
2 | attorney's fees and costs may be awarded from the
opposing | ||||||
3 | party, in a pre-judgment dissolution proceeding in accordance | ||||||
4 | with subsection (c-1) of Section 501 and in any other | ||||||
5 | proceeding under this subsection . At the
conclusion of any | ||||||
6 | pre-judgment dissolution proceeding under this subsection the | ||||||
7 | case , contribution to attorney's fees and costs may be
awarded | ||||||
8 | from the opposing party in accordance with subsection (j) of | ||||||
9 | Section
503 and in any other proceeding under this subsection . | ||||||
10 | Fees and costs may be awarded in any proceeding to counsel from | ||||||
11 | a former client in
accordance with subsection (c) of
this | ||||||
12 | Section.
Awards may be made in connection with the following:
| ||||||
13 | (1) The maintenance or defense of any proceeding under | ||||||
14 | this Act.
| ||||||
15 | (2) The enforcement or modification of any order or | ||||||
16 | judgment
under this Act.
| ||||||
17 | (3) The defense of an appeal of any order or judgment | ||||||
18 | under
this Act, including the defense of appeals of | ||||||
19 | post-judgment orders.
| ||||||
20 | (3.1) The prosecution of any claim on appeal (if the | ||||||
21 | prosecuting party
has
substantially prevailed).
| ||||||
22 | (4) The maintenance or defense of a petition brought | ||||||
23 | under
Section 2-1401 of the Code of Civil Procedure seeking | ||||||
24 | relief from a
final order or judgment under this Act.
| ||||||
25 | (5) The costs and legal services of an attorney | ||||||
26 | rendered in
preparation of the commencement of the |
| |||||||
| |||||||
1 | proceeding brought under this Act.
| ||||||
2 | (6) Ancillary litigation incident to, or reasonably | ||||||
3 | connected with, a
proceeding under this Act.
| ||||||
4 | All petitions for or relating to interim fees and costs | ||||||
5 | under this subsection shall be accompanied by an affidavit as | ||||||
6 | to the factual basis for the relief requested and all hearings | ||||||
7 | relative to any such petition shall be scheduled expeditiously | ||||||
8 | by the court. All provisions for contribution under this | ||||||
9 | subsection shall also be subject to paragraphs (3), (4), and | ||||||
10 | (5) of subsection (j) of Section 503. | ||||||
11 | The court may order that the award of attorney's fees and | ||||||
12 | costs
(including an interim or contribution award) shall be | ||||||
13 | paid directly to the
attorney, who may enforce the order in his | ||||||
14 | or her name, or that it shall be
paid to
the appropriate party. | ||||||
15 | Judgment may be entered and enforcement had
accordingly. Except | ||||||
16 | as otherwise provided in subdivision (e)(1) of this
Section, | ||||||
17 | subsection (c) of this Section
is exclusive as to the right of | ||||||
18 | any counsel
(or
former counsel) of record to petition a court | ||||||
19 | for an award and judgment for
final fees and costs during the | ||||||
20 | pendency of a proceeding under this Act.
| ||||||
21 | (b) In every proceeding for the enforcement of an order or | ||||||
22 | judgment
when the court finds that the failure to comply with | ||||||
23 | the order or judgment
was without compelling cause or | ||||||
24 | justification, the court shall order the
party against
whom the | ||||||
25 | proceeding is brought to pay promptly the costs and reasonable
| ||||||
26 | attorney's
fees of the prevailing party.
If non-compliance is |
| |||||||
| |||||||
1 | with respect to a discovery order, the non-compliance is
| ||||||
2 | presumptively without compelling cause or justification, and | ||||||
3 | the presumption
may only be rebutted by clear and convincing | ||||||
4 | evidence. If at any time a court
finds that a hearing under | ||||||
5 | this Section was precipitated or conducted for any
improper | ||||||
6 | purpose, the court shall allocate fees and costs of all parties | ||||||
7 | for
the hearing to the party or counsel found to have acted | ||||||
8 | improperly. Improper
purposes include, but are not limited to, | ||||||
9 | harassment, unnecessary
delay, or other acts needlessly | ||||||
10 | increasing the cost of litigation.
| ||||||
11 | (c) Final hearings for attorney's fees and costs against an | ||||||
12 | attorney's own
client, pursuant to a Petition for Setting Final | ||||||
13 | Fees and Costs of either a
counsel or a client, shall be | ||||||
14 | governed by the following:
| ||||||
15 | (1) No petition of a counsel of record may be filed | ||||||
16 | against a client
unless the filing counsel previously has | ||||||
17 | been granted leave to withdraw as
counsel of record or has | ||||||
18 | filed a motion for leave to withdraw as counsel. On
receipt
| ||||||
19 | of a petition of a client under this subsection (c), the | ||||||
20 | counsel of record
shall promptly file a motion for leave to | ||||||
21 | withdraw as counsel. If the client
and the counsel of
| ||||||
22 | record agree, however, a hearing on the motion for leave to | ||||||
23 | withdraw as counsel
filed pursuant to this
subdivision | ||||||
24 | (c)(1) may be deferred until completion of any alternative | ||||||
25 | dispute
resolution procedure under subdivision (c)(4). As | ||||||
26 | to any
Petition for Setting Final Fees and Costs against a |
| |||||||
| |||||||
1 | client or counsel over whom
the court has not obtained
| ||||||
2 | jurisdiction, a separate summons shall issue. Whenever a | ||||||
3 | separate summons is
not required, original notice as to a | ||||||
4 | Petition for Setting Final Fees and Costs
may be given, and | ||||||
5 | documents
served, in accordance with Illinois Supreme | ||||||
6 | Court Rules 11 and 12.
| ||||||
7 | (2) No final hearing under this subsection (c) is | ||||||
8 | permitted
unless: (i) the
counsel and the client had | ||||||
9 | entered into a written engagement agreement at the
time the | ||||||
10 | client retained the counsel (or reasonably soon | ||||||
11 | thereafter) and the
agreement
meets the requirements of | ||||||
12 | subsection (f); (ii) the written engagement agreement
is | ||||||
13 | attached to an affidavit of counsel that is filed with the | ||||||
14 | petition or with
the
counsel's response to a client's | ||||||
15 | petition; (iii) judgment in any contribution
hearing on | ||||||
16 | behalf of the client has been entered or the right to a | ||||||
17 | contribution
hearing under subsection (j) of Section 503 | ||||||
18 | has been waived; (iv) the counsel
has withdrawn as
counsel | ||||||
19 | of record; and (v) the petition seeks adjudication of all | ||||||
20 | unresolved
claims for fees and costs between the counsel | ||||||
21 | and the client. Irrespective of a
Petition for Setting | ||||||
22 | Final Fees and Costs being heard in conjunction with an
| ||||||
23 | original proceeding under this Act, the relief requested | ||||||
24 | under a Petition for
Setting Final Fees and Costs | ||||||
25 | constitutes a distinct cause of action. A pending
but | ||||||
26 | undetermined
Petition for Setting Final Fees and Costs |
| |||||||
| |||||||
1 | shall not affect appealability of
any judgment or other | ||||||
2 | adjudication in the original proceeding.
| ||||||
3 | (3) The determination of reasonable attorney's fees | ||||||
4 | and costs either under
this
subsection (c), whether | ||||||
5 | initiated by a counsel or a client, or in an
independent | ||||||
6 | proceeding for services within the scope of subdivisions | ||||||
7 | (1)
through (5) of subsection (a), is within the sound | ||||||
8 | discretion of the trial
court. The court shall first | ||||||
9 | consider the written engagement agreement and, if
the court | ||||||
10 | finds that the former client and the filing counsel, | ||||||
11 | pursuant to
their written engagement agreement, entered | ||||||
12 | into a contract which meets
applicable requirements of | ||||||
13 | court rules and addresses all material terms, then
the | ||||||
14 | contract shall be enforceable in accordance with its terms, | ||||||
15 | subject to the
further requirements of this subdivision | ||||||
16 | (c)(3). Before ordering enforcement,
however, the court
| ||||||
17 | shall consider the performance pursuant to the contract. | ||||||
18 | Any amount awarded
by the court must be found to be fair | ||||||
19 | compensation for the services, pursuant
to the contract, | ||||||
20 | that the court finds were reasonable and necessary. Quantum
| ||||||
21 | meruit principles shall govern any award for legal services | ||||||
22 | performed that is
not based on the terms of the written | ||||||
23 | engagement agreement (except that, if a
court expressly | ||||||
24 | finds in a particular case that aggregate billings to a | ||||||
25 | client
were unconscionably excessive, the court in its | ||||||
26 | discretion may reduce the award
otherwise determined |
| |||||||
| |||||||
1 | appropriate or deny fees altogether).
| ||||||
2 | (4) No final hearing under this subsection (c) is | ||||||
3 | permitted unless any
controversy
over fees and costs (that | ||||||
4 | is not otherwise subject to some form of alternative
| ||||||
5 | dispute resolution) has first been submitted to mediation, | ||||||
6 | arbitration, or any
other court approved alternative | ||||||
7 | dispute resolution procedure, except as
follows:
| ||||||
8 | (A) In any circuit court for a single county with a | ||||||
9 | population in excess
of
1,000,000, the requirement of | ||||||
10 | the controversy being submitted to an alternative
| ||||||
11 | dispute resolution procedure is mandatory unless the | ||||||
12 | client and the counsel
both affirmatively opt out of | ||||||
13 | such procedures; or
| ||||||
14 | (B) In any other circuit court, the requirement of | ||||||
15 | the controversy being
submitted to an alternative | ||||||
16 | dispute resolution procedure is mandatory only if
| ||||||
17 | neither the client nor the counsel affirmatively opts | ||||||
18 | out of such
procedures.
| ||||||
19 | After completion of any such procedure (or after one or | ||||||
20 | both sides has
opted
out of such procedures), if the | ||||||
21 | dispute is unresolved, any pending motion
for leave to | ||||||
22 | withdraw as counsel shall be promptly granted and a final | ||||||
23 | hearing
under this subsection
(c) shall be expeditiously | ||||||
24 | set and completed.
| ||||||
25 | (5) A petition (or a praecipe for fee hearing without | ||||||
26 | the petition) shall
be
filed no later than the end of the |
| |||||||
| |||||||
1 | period in which it is permissible to file a
motion pursuant | ||||||
2 | to Section 2-1203 of the Code of Civil Procedure. A | ||||||
3 | praecipe
for fee hearing shall be dismissed if a Petition | ||||||
4 | for Setting Final Fees and
Costs is not filed within 60 | ||||||
5 | days after the filing of the praecipe. A counsel
who | ||||||
6 | becomes a party by filing a Petition for Setting Final Fees | ||||||
7 | and Costs, or
as a result of the client
filing a Petition | ||||||
8 | for Setting Final Fees and Costs, shall not be entitled to
| ||||||
9 | exercise the right to a
substitution of a judge without | ||||||
10 | cause under subdivision (a)(2) of Section
2-1001 of the | ||||||
11 | Code of Civil Procedure. Each of the foregoing deadlines | ||||||
12 | for the filing of a praecipe or a petition shall be:
| ||||||
13 | (A) tolled if a motion is filed under Section 2-1203 of | ||||||
14 | the Code of Civil Procedure, in which instance a petition | ||||||
15 | (or a praecipe) shall be filed no later than 30 days | ||||||
16 | following disposition of all Section 2-1203 motions; or | ||||||
17 | (B) tolled if a notice of appeal is filed, in which | ||||||
18 | instance a petition (or praecipe) shall be filed no later | ||||||
19 | than 30 days following the date jurisdiction on the issue | ||||||
20 | appealed is returned to the trial court. | ||||||
21 | If a praecipe has been timely filed, then by timely filed | ||||||
22 | written stipulation between counsel and client (or former | ||||||
23 | client), the deadline for the filing of a petition may be | ||||||
24 | extended for a period of up to one year. | ||||||
25 | (d) A consent judgment, in favor of a current counsel of | ||||||
26 | record against his
or her own client for a specific amount in a |
| |||||||
| |||||||
1 | marital settlement agreement,
dissolution judgment, or any | ||||||
2 | other instrument involving the other litigant, is
prohibited. A | ||||||
3 | consent judgment between client and counsel, however, is
| ||||||
4 | permissible if it is entered pursuant to a verified petition | ||||||
5 | for entry of
consent judgment, supported by an affidavit of the | ||||||
6 | counsel of record that
incorporates an itemization of the | ||||||
7 | billing or billings to the client, detailing
hourly costs, time | ||||||
8 | spent, and tasks performed, and by an affidavit of the
client | ||||||
9 | acknowledging receipt of that documentation, awareness
of the | ||||||
10 | right to a hearing, the right to be represented by counsel | ||||||
11 | (other than
counsel to whom the consent judgment is in favor), | ||||||
12 | and the right to be present
at
the time of presentation of the | ||||||
13 | petition, and agreement to the terms of the
judgment. The | ||||||
14 | petition may be filed at any time during which it is | ||||||
15 | permissible
for counsel of record to file a petition (or a | ||||||
16 | praecipe) for a final fee
hearing, except that no such petition | ||||||
17 | for entry of consent judgment may be
filed before adjudication | ||||||
18 | (or waiver) of the client's right to contribution
under | ||||||
19 | subsection (j) of Section 503 or filed after the filing of a
| ||||||
20 | petition (or a praecipe) by counsel of record for a fee hearing | ||||||
21 | under
subsection (c) if the petition (or praecipe) remains | ||||||
22 | pending. No consent
security arrangement between a client and a | ||||||
23 | counsel of record, pursuant to
which assets of a client are | ||||||
24 | collateralized to secure payment of legal fees or
costs, is | ||||||
25 | permissible unless approved in advance by the court as being
| ||||||
26 | reasonable under the circumstances.
|
| |||||||
| |||||||
1 | (e) Counsel may pursue an award and judgment against a | ||||||
2 | former client for
legal
fees and costs in an independent | ||||||
3 | proceeding in the following circumstances:
| ||||||
4 | (1) While a case under this Act is still pending, a | ||||||
5 | former counsel may pursue
such an award and judgment at any | ||||||
6 | time subsequent to 90 days after the entry of
an order | ||||||
7 | granting counsel leave to withdraw; and
| ||||||
8 | (2) After the close of the period during which a | ||||||
9 | petition (or praecipe)
may be filed under subdivision | ||||||
10 | (c)(5), if no such petition (or praecipe) for
the
counsel | ||||||
11 | remains pending, any counsel or former counsel may pursue | ||||||
12 | such an award
and judgment in an independent proceeding.
| ||||||
13 | In an independent proceeding, the prior applicability of this | ||||||
14 | Section
shall in no way be deemed to have diminished any other | ||||||
15 | right of any counsel (or
former counsel) to pursue an award and | ||||||
16 | judgment for legal fees and costs on the
basis of remedies that | ||||||
17 | may otherwise exist under applicable law; and the limitations | ||||||
18 | period for breach of contract shall apply. In an
independent | ||||||
19 | proceeding under subdivision (e)(1) in which the former counsel | ||||||
20 | had
represented a former client in a dissolution case that is | ||||||
21 | still pending, the former
client may bring
in his or her spouse | ||||||
22 | as a third-party defendant, provided on or before the
final | ||||||
23 | date for filing a petition (or praecipe) under subsection (c), | ||||||
24 | the party
files an appropriate third-party complaint under | ||||||
25 | Section 2-406 of the Code of
Civil Procedure. In any such case, | ||||||
26 | any judgment later obtained by the
former counsel shall be |
| |||||||
| |||||||
1 | against both spouses or ex-spouses, jointly and
severally | ||||||
2 | (except that, if a hearing under subsection (j) of Section 503 | ||||||
3 | has
already been concluded and the court hearing the | ||||||
4 | contribution issue has imposed
a percentage allocation between | ||||||
5 | the parties as to
fees and costs otherwise being adjudicated in | ||||||
6 | the independent proceeding, the
allocation
shall be applied | ||||||
7 | without deviation by the court in the independent proceeding
| ||||||
8 | and a separate judgment shall be entered against each spouse | ||||||
9 | for the
appropriate
amount). After the period for the | ||||||
10 | commencement of a proceeding under
subsection (c), the | ||||||
11 | provisions of this Section (other than the standard set
forth | ||||||
12 | in subdivision (c)(3) and the terms respecting consent security
| ||||||
13 | arrangements in subsection (d) of this Section 508) shall be | ||||||
14 | inapplicable.
| ||||||
15 | The changes made by this amendatory Act of the 94th General | ||||||
16 | Assembly are declarative of existing law.
| ||||||
17 | (f) Unless the Supreme Court by rule addresses the matters | ||||||
18 | set out in this
subsection (f), a written engagement agreement | ||||||
19 | within the scope
of subdivision (c)(2) shall have appended to | ||||||
20 | it verbatim the following
Statement:
| ||||||
21 | "STATEMENT OF CLIENT'S RIGHTS AND RESPONSIBILITIES
| ||||||
22 | (1) WRITTEN ENGAGEMENT AGREEMENT. The written engagement | ||||||
23 | agreement, prepared
by the counsel, shall clearly address the | ||||||
24 | objectives of representation and
detail the fee arrangement, | ||||||
25 | including all material terms. If fees are to be
based on |
| |||||||
| |||||||
1 | criteria apart from, or in addition to, hourly rates, such | ||||||
2 | criteria
(e.g., unique time demands and/or utilization of | ||||||
3 | unique expertise) shall be
delineated. The client shall receive | ||||||
4 | a copy of the written engagement
agreement and any additional | ||||||
5 | clarification requested and is advised not to
sign any such | ||||||
6 | agreement which the client finds to be unsatisfactory or does
| ||||||
7 | not understand.
| ||||||
8 | (2) REPRESENTATION. Representation will commence upon the | ||||||
9 | signing of the
written engagement agreement. The counsel will | ||||||
10 | provide competent
representation, which requires legal | ||||||
11 | knowledge, skill, thoroughness and
preparation to handle those | ||||||
12 | matters set forth in the written engagement
agreement. Once | ||||||
13 | employed, the counsel will act with reasonable diligence and
| ||||||
14 | promptness, as well as use his best efforts on behalf of the | ||||||
15 | client, but he
cannot guarantee results. The counsel will abide | ||||||
16 | by the client's decision
concerning the objectives of | ||||||
17 | representation, including whether or not to accept
an offer of | ||||||
18 | settlement, and will endeavor to explain any matter to the | ||||||
19 | extent
reasonably necessary to permit the client to make | ||||||
20 | informed decisions regarding
representation. During the course | ||||||
21 | of representation and afterwards, the
counsel
may not use or | ||||||
22 | reveal a client's confidence or secrets, except as required or
| ||||||
23 | permitted by law.
| ||||||
24 | (3) COMMUNICATION. The counsel will keep the client | ||||||
25 | reasonably informed
about the status of representation and will | ||||||
26 | promptly respond to reasonable
requests for information, |
| |||||||
| |||||||
1 | including any reasonable request for an estimate
respecting | ||||||
2 | future costs of the representation or an appropriate portion of | ||||||
3 | it.
The client shall be truthful in all discussions with the | ||||||
4 | counsel and provide
all information or documentation required | ||||||
5 | to enable the counsel to provide
competent representation. | ||||||
6 | During representation, the client is entitled to
receive all | ||||||
7 | pleadings and substantive documents prepared on behalf of the
| ||||||
8 | client and every document received from any other counsel of | ||||||
9 | record. At the
end of the representation and on written request | ||||||
10 | from the client, the counsel
will return to the client all | ||||||
11 | original documents and exhibits. In the event
that the counsel | ||||||
12 | withdraws from representation, or is discharged by the client,
| ||||||
13 | the counsel will turn over to the substituting counsel (or, if | ||||||
14 | no
substitutions, to the client) all original documents and | ||||||
15 | exhibits together with
complete copies of all pleadings and | ||||||
16 | discovery within thirty (30) days of the
counsel's withdrawal | ||||||
17 | or discharge.
| ||||||
18 | (4) ETHICAL CONDUCT. The counsel cannot be required to | ||||||
19 | engage in conduct
which is illegal, unethical, or fraudulent. | ||||||
20 | In matters involving minor
children, the counsel may refuse to | ||||||
21 | engage in conduct which, in the counsel's
professional | ||||||
22 | judgment, would be contrary to the best interest of the | ||||||
23 | client's
minor child or children. A counsel who cannot | ||||||
24 | ethically abide by his client's
directions shall be allowed to | ||||||
25 | withdraw from representation.
| ||||||
26 | (5) FEES. The counsel's fee for services may not be |
| |||||||
| |||||||
1 | contingent upon the
securing of a dissolution of marriage, upon | ||||||
2 | obtaining custody, or be based upon
the amount of maintenance, | ||||||
3 | child support, or property settlement received,
except as | ||||||
4 | specifically permitted under Supreme Court rules. The
counsel | ||||||
5 | may not require a non-refundable retainer fee, but must remit | ||||||
6 | back any
overpayment at the end of the representation. The | ||||||
7 | counsel may enter into a
consensual security arrangement with | ||||||
8 | the client whereby assets of the client
are pledged to secure | ||||||
9 | payment of legal fees or costs, but only if the counsel
first | ||||||
10 | obtains approval of the Court. The counsel will prepare and | ||||||
11 | provide the
client with an itemized billing statement detailing | ||||||
12 | hourly rates (and/or other
criteria), time spent, tasks | ||||||
13 | performed, and costs incurred on a regular basis,
at least | ||||||
14 | quarterly. The client should review each billing statement | ||||||
15 | promptly
and address any objection or error in a timely manner. | ||||||
16 | The client will not be
billed for time spent to explain or | ||||||
17 | correct a billing statement. If an
appropriately detailed | ||||||
18 | written estimate is submitted to a client as to future
costs | ||||||
19 | for a counsel's representation or a portion of the contemplated | ||||||
20 | services
(i.e., relative to specific steps recommended by the | ||||||
21 | counsel in the estimate)
and, without objection from the | ||||||
22 | client, the counsel then performs the
contemplated services, | ||||||
23 | all such services are presumptively reasonable and
necessary, | ||||||
24 | as well as to be deemed pursuant to the client's direction. In | ||||||
25 | an
appropriate case, the client may pursue contribution to his | ||||||
26 | or her fees and
costs from the other party.
|
| |||||||
| |||||||
1 | (6) DISPUTES. The counsel-client relationship is regulated | ||||||
2 | by the Illinois
Rules of Professional Conduct (Article VIII of | ||||||
3 | the Illinois Supreme Court
Rules), and any dispute shall be | ||||||
4 | reviewed under the terms of such Rules."
| ||||||
5 | (g) The changes to this Section 508 made by this amendatory | ||||||
6 | Act of 1996
apply to cases pending on or after June 1, 1997, | ||||||
7 | except as follows:
| ||||||
8 | (1) Subdivisions (c)(1) and (c)(2) of this Section 508, | ||||||
9 | as well as
provisions of subdivision (c)(3) of this Section | ||||||
10 | 508 pertaining to written
engagement agreements, apply | ||||||
11 | only to
cases filed on or after June 1, 1997.
| ||||||
12 | (2) The following do not apply in the case of a hearing | ||||||
13 | under this Section
that began before June 1, 1997:
| ||||||
14 | (A) Subsection (c-1) of Section 501.
| ||||||
15 | (B) Subsection (j) of Section 503.
| ||||||
16 | (C) The changes to this Section 508 made by this | ||||||
17 | amendatory Act of 1996
pertaining to the final setting | ||||||
18 | of fees.
| ||||||
19 | (Source: P.A. 94-1016, eff. 7-7-06.)
|