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| [ House Amendment 001 ] |
90_HB3375
750 ILCS 5/501 from Ch. 40, par. 501
Amends the Illinois Marriage and Dissolution of Marriage
Act. Provides that interim attorney's fees and costs may not
be awarded in any proceeding brought after the entry of a
judgment of dissolution of marriage or declaration of
invalidity of marriage.
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1 AN ACT to amend the Illinois Marriage and Dissolution of
2 Marriage Act by changing Section 501.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Illinois Marriage and Dissolution of
6 Marriage Act is amended by changing Section 501 as follows:
7 (750 ILCS 5/501) (from Ch. 40, par. 501)
8 Sec. 501. Temporary Relief.) In all proceedings under
9 this 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
20 any property except in the usual course of business
21 or for the necessities of life, and, if so
22 restrained, requiring him to notify the moving party
23 and his attorney of any proposed extraordinary
24 expenditures made after the order is issued;
25 (ii) enjoining a party from removing a child
26 from the jurisdiction of the court;
27 (iii) enjoining a party from striking or
28 interfering with the personal liberty of the other
29 party or of any child; or
30 (iv) providing other injunctive relief proper
31 in the circumstances; or
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1 (3) other appropriate temporary relief.
2 (b) The court may issue a temporary restraining order
3 without requiring notice to the other party only if it finds,
4 on the basis of the moving affidavit or other evidence, that
5 irreparable injury will result to the moving party if no
6 order is issued until the time for responding has elapsed.
7 (c) A response hereunder may be filed within 21 days
8 after service of notice of motion or at the time specified in
9 the temporary restraining order.
10 (c-1) As used in this subsection (c-1), "interim
11 attorney's fees and costs" means attorney's fees and costs
12 assessed from time to time while a case is pending, in favor
13 of the petitioning party's current counsel, for reasonable
14 fees and costs either already incurred or to be incurred, and
15 "interim award" means an award of interim attorney's fees and
16 costs. Interim awards shall be governed by the following:
17 (1) Except for good cause shown, a proceeding for
18 (or relating to) interim attorney's fees and costs shall
19 be nonevidentiary, summary in nature, and expeditious.
20 When a party files a petition for interim attorney's fees
21 and costs supported by one or more affidavits that
22 delineate relevant factors, the court (or a hearing
23 officer) shall assess an interim award after affording
24 the opposing party a reasonable opportunity to file a
25 responsive pleading. A responsive pleading shall set out
26 the amount of each retainer or other payment or payments,
27 or both, previously paid to the responding party's
28 counsel by or on behalf of the responding party. In
29 assessing an interim award, the court shall consider all
30 relevant factors, as presented, that appear reasonable
31 and necessary, including:
32 (A) the income and property of each party,
33 including alleged marital property within the sole
34 control of one party and alleged non-marital
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1 property within access to a party;
2 (B) the needs of each party;
3 (C) the realistic earning capacity of each
4 party;
5 (D) any impairment to present earning capacity
6 of either party, including age and physical and
7 emotional health;
8 (E) the standard of living established during
9 the marriage;
10 (F) the degree of complexity of the issues,
11 including custody, valuation or division (or both)
12 of closely held businesses, and tax planning, as
13 well as reasonable needs for expert investigations
14 or expert witnesses, or both;
15 (G) each party's access to relevant
16 information;
17 (H) the amount of the payment or payments made
18 or reasonably expected to be made to the attorney
19 for the other party; and
20 (I) any other factor that the court expressly
21 finds to be just and equitable.
22 (2) Any assessment of an interim award (including
23 one pursuant to an agreed order) shall be without
24 prejudice to any final allocation and without prejudice
25 as to any claim or right of either party or any counsel
26 of record at the time of the award. Any such claim or
27 right may be presented by the appropriate party or
28 counsel at a hearing on contribution under subsection (j)
29 of Section 503 or a hearing on counsel's fees under
30 subsection (c) of Section 508. Unless otherwise ordered
31 by the court at the final hearing between the parties or
32 in a hearing under subsection (j) of Section 503 or
33 subsection (c) of Section 508, interim awards, as well as
34 the aggregate of all other payments by each party to
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1 counsel and related payments to third parties, shall be
2 deemed to have been advances from the parties' marital
3 estate. Any portion of any interim award constituting an
4 overpayment shall be remitted back to the appropriate
5 party or parties, or, alternatively, to successor
6 counsel, as the court determines and directs, after
7 notice.
8 (3) In any proceeding under this subsection (c-1),
9 the court (or hearing officer) shall assess an interim
10 award against an opposing party in an amount necessary to
11 enable the petitioning party to participate adequately in
12 the litigation, upon findings that the party from whom
13 attorney's fees and costs are sought has the financial
14 ability to pay reasonable amounts and that the party
15 seeking attorney's fees and costs lacks sufficient access
16 to assets or income to pay reasonable amounts. In
17 determining an award, the court shall consider whether
18 adequate participation in the litigation requires
19 expenditure of more fees and costs for a party that is
20 not in control of assets or relevant information. Except
21 for good cause shown, an interim award shall not be less
22 than payments made or reasonably expected to be made to
23 the counsel for the other party. If the court finds that
24 both parties lack financial ability or access to assets
25 or income for reasonable attorney's fees and costs, the
26 court (or hearing officer) shall enter an order that
27 allocates available funds for each party's counsel,
28 including retainers or interim payments, or both,
29 previously paid, in a manner that achieves substantial
30 parity between the parties.
31 (3.1) Interim attorney's fees and costs may not be
32 awarded in any proceeding brought after the entry of a
33 judgment of dissolution of marriage or declaration of
34 invalidity of marriage.
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1 (4) The changes to this Section 501 made by this
2 amendatory Act of 1996 apply to cases pending on or after
3 June 1, 1997, except as otherwise provided in Section
4 508.
5 (d) A temporary order entered under this Section:
6 (1) does not prejudice the rights of the parties or
7 the child which are to be adjudicated at subsequent
8 hearings in the proceeding;
9 (2) may be revoked or modified before final
10 judgment, on a showing by affidavit and upon hearing; and
11 (3) terminates when the final judgment is entered
12 or when the petition for dissolution of marriage or legal
13 separation or declaration of invalidity of marriage is
14 dismissed.
15 (Source: P.A. 89-712, eff. 6-1-97.)