Illinois General Assembly - Full Text of SB0065
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Full Text of SB0065  96th General Assembly



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1     AN ACT concerning civil law.
2     Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4     Section 5. The Illinois Marriage and Dissolution of
5 Marriage Act is amended by changing Sections 501, 503, and 508
6 as follows:
7     (750 ILCS 5/501)  (from Ch. 40, par. 501)
8     Sec. 501. Temporary Relief.) In all proceedings under this
9 Act, temporary relief shall be as follows:
10     (a) Either party may move for:
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



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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



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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



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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



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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



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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;



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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



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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



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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



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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



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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.



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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



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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



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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



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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



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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 Act 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



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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



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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



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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



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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



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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 includes the counsel's representation
7 that the client has been provided incorporates an itemization
8 of the billing or billings to the client, detailing hourly
9 costs, time spent, and tasks performed, and by an affidavit of
10 the client acknowledging receipt of that documentation,
11 awareness of the right to a hearing, the right to be
12 represented by counsel (other than counsel to whom the consent
13 judgment is in favor), and the right to be present at the time
14 of presentation of the petition, and agreement to the terms of
15 the judgment. The petition may be filed at any time during
16 which it is permissible for counsel of record to file a
17 petition (or a praecipe) for a final fee hearing, except that
18 no such petition for entry of consent judgment may be filed
19 before adjudication (or waiver) of the client's right to
20 contribution under subsection (j) of Section 503 or filed after
21 the filing of a petition (or a praecipe) by counsel of record
22 for a fee hearing under subsection (c) if the petition (or
23 praecipe) remains pending. No consent security arrangement
24 between a client and a counsel of record, pursuant to which
25 assets of a client are collateralized to secure payment of
26 legal fees or costs, is permissible unless approved in advance



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1 by the court as being reasonable under the circumstances.
2     (e) Counsel may pursue an award and judgment against a
3 former client for legal fees and costs in an independent
4 proceeding in the following circumstances:
5         (1) While a case under this Act is still pending, a
6     former counsel may pursue such an award and judgment at any
7     time subsequent to 90 days after the entry of an order
8     granting counsel leave to withdraw; and
9         (2) After the close of the period during which a
10     petition (or praecipe) may be filed under subdivision
11     (c)(5), if no such petition (or praecipe) for the counsel
12     remains pending, any counsel or former counsel may pursue
13     such an award and judgment in an independent proceeding.
14 In an independent proceeding, the prior applicability of this
15 Section shall in no way be deemed to have diminished any other
16 right of any counsel (or former counsel) to pursue an award and
17 judgment for legal fees and costs on the basis of remedies that
18 may otherwise exist under applicable law; and the limitations
19 period for breach of contract shall apply. In an independent
20 proceeding under subdivision (e)(1) in which the former counsel
21 had represented a former client in a dissolution case that is
22 still pending, the former client may bring in his or her spouse
23 as a third-party defendant, provided on or before the final
24 date for filing a petition (or praecipe) under subsection (c),
25 the party files an appropriate third-party complaint under
26 Section 2-406 of the Code of Civil Procedure. In any such case,



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1 any judgment later obtained by the former counsel shall be
2 against both spouses or ex-spouses, jointly and severally
3 (except that, if a hearing under subsection (j) of Section 503
4 has already been concluded and the court hearing the
5 contribution issue has imposed a percentage allocation between
6 the parties as to fees and costs otherwise being adjudicated in
7 the independent proceeding, the allocation shall be applied
8 without deviation by the court in the independent proceeding
9 and a separate judgment shall be entered against each spouse
10 for the appropriate amount). After the period for the
11 commencement of a proceeding under subsection (c), the
12 provisions of this Section (other than the standard set forth
13 in subdivision (c)(3) and the terms respecting consent security
14 arrangements in subsection (d) of this Section 508) shall be
15 inapplicable.
16     The changes made by this amendatory Act of the 94th General
17 Assembly are declarative of existing law.
18     (f) Unless the Supreme Court by rule addresses the matters
19 set out in this subsection (f), a written engagement agreement
20 within the scope of subdivision (c)(2) shall have appended to
21 it verbatim the following Statement:
23     (1) WRITTEN ENGAGEMENT AGREEMENT. The written engagement
24 agreement, prepared by the counsel, shall clearly address the
25 objectives of representation and detail the fee arrangement,



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1 including all material terms. If fees are to be based on
2 criteria apart from, or in addition to, hourly rates, such
3 criteria (e.g., unique time demands and/or utilization of
4 unique expertise) shall be delineated. The client shall receive
5 a copy of the written engagement agreement and any additional
6 clarification requested and is advised not to sign any such
7 agreement which the client finds to be unsatisfactory or does
8 not understand.
9     (2) REPRESENTATION. Representation will commence upon the
10 signing of the written engagement agreement. The counsel will
11 provide competent representation, which requires legal
12 knowledge, skill, thoroughness and preparation to handle those
13 matters set forth in the written engagement agreement. Once
14 employed, the counsel will act with reasonable diligence and
15 promptness, as well as use his best efforts on behalf of the
16 client, but he cannot guarantee results. The counsel will abide
17 by the client's decision concerning the objectives of
18 representation, including whether or not to accept an offer of
19 settlement, and will endeavor to explain any matter to the
20 extent reasonably necessary to permit the client to make
21 informed decisions regarding representation. During the course
22 of representation and afterwards, the counsel may not use or
23 reveal a client's confidence or secrets, except as required or
24 permitted by law.
25     (3) COMMUNICATION. The counsel will keep the client
26 reasonably informed about the status of representation and will



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1 promptly respond to reasonable requests for information,
2 including any reasonable request for an estimate respecting
3 future costs of the representation or an appropriate portion of
4 it. The client shall be truthful in all discussions with the
5 counsel and provide all information or documentation required
6 to enable the counsel to provide competent representation.
7 During representation, the client is entitled to receive all
8 pleadings and substantive documents prepared on behalf of the
9 client and every document received from any other counsel of
10 record. At the end of the representation and on written request
11 from the client, the counsel will return to the client all
12 original documents and exhibits. In the event that the counsel
13 withdraws from representation, or is discharged by the client,
14 the counsel will turn over to the substituting counsel (or, if
15 no substitutions, to the client) all original documents and
16 exhibits together with complete copies of all pleadings and
17 discovery within thirty (30) days of the counsel's withdrawal
18 or discharge.
19     (4) ETHICAL CONDUCT. The counsel cannot be required to
20 engage in conduct which is illegal, unethical, or fraudulent.
21 In matters involving minor children, the counsel may refuse to
22 engage in conduct which, in the counsel's professional
23 judgment, would be contrary to the best interest of the
24 client's minor child or children. A counsel who cannot
25 ethically abide by his client's directions shall be allowed to
26 withdraw from representation.



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1     (5) FEES. The counsel's fee for services may not be
2 contingent upon the securing of a dissolution of marriage, upon
3 obtaining custody, or be based upon the amount of maintenance,
4 child support, or property settlement received, except as
5 specifically permitted under Supreme Court rules. The counsel
6 may not require a non-refundable retainer fee, but must remit
7 back any overpayment at the end of the representation. The
8 counsel may enter into a consensual security arrangement with
9 the client whereby assets of the client are pledged to secure
10 payment of legal fees or costs, but only if the counsel first
11 obtains approval of the Court. The counsel will prepare and
12 provide the client with an itemized billing statement detailing
13 hourly rates (and/or other criteria), time spent, tasks
14 performed, and costs incurred on a regular basis, at least
15 quarterly. The client should review each billing statement
16 promptly and address any objection or error in a timely manner.
17 The client will not be billed for time spent to explain or
18 correct a billing statement. If an appropriately detailed
19 written estimate is submitted to a client as to future costs
20 for a counsel's representation or a portion of the contemplated
21 services (i.e., relative to specific steps recommended by the
22 counsel in the estimate) and, without objection from the
23 client, the counsel then performs the contemplated services,
24 all such services are presumptively reasonable and necessary,
25 as well as to be deemed pursuant to the client's direction. In
26 an appropriate case, the client may pursue contribution to his



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1 or her fees and costs from the other party.
2     (6) DISPUTES. The counsel-client relationship is regulated
3 by the Illinois Rules of Professional Conduct (Article VIII of
4 the Illinois Supreme Court Rules), and any dispute shall be
5 reviewed under the terms of such Rules."
6     (g) The changes to this Section 508 made by this amendatory
7 Act of 1996 apply to cases pending on or after June 1, 1997,
8 except as follows:
9         (1) Subdivisions (c)(1) and (c)(2) of this Section 508,
10     as well as provisions of subdivision (c)(3) of this Section
11     508 pertaining to written engagement agreements, apply
12     only to cases filed on or after June 1, 1997.
13         (2) The following do not apply in the case of a hearing
14     under this Section that began before June 1, 1997:
15             (A) Subsection (c-1) of Section 501.
16             (B) Subsection (j) of Section 503.
17             (C) The changes to this Section 508 made by this
18         amendatory Act of 1996 pertaining to the final setting
19         of fees.
20 (Source: P.A. 94-1016, eff. 7-7-06.)