Illinois Attorney's Fees and the Leveling the Playing Field Act

elow, we can simply go to court and have a full, blown out litigation slash war.” In previous
years the husband’s gross income had been over $1M but in 2004 it was approximately
$400,000. The husband had an interest in three businesses and received a yearly salary. The
trial court ultimately “ordered Bruce to contribute $700,000 to Lisa’s attorney fees because
“Bruce holds a financial position far superior to [Lisa’s] and is well able to help defray her fees,
and because the Court believes that Bruce protracted the litigation out of sheer vindictiveness.”
There were appeals and cross-appeals and the appellate court generally affirmed the trial court’s
decision.
The critical discussion on appeal addressed the bundled services of SDF and stated:
Though not explicitly required by section 503(j), we have found that contribution
awards under that section must be reasonable. Hasabnis, 322 Ill. App. 3d at 596
(“Section 503(j) does not expressly require the award of fees be reasonable, but
since we cannot envision a grant of legislative authority that tells judges to be
unreasonable, we read the statute as incorporating a reasonability requirement”).
Bruce, relying primarily on our holding in Hasabnis, argues on appeal that “the
trial court’s finding–that it is impossible to tell with precision whether all the
work performed was reasonable–should have resulted in a denial of all of the fees
requested in [Lisa’s] contribution petition,” because such a finding is necessary to
award contribution under section 503(j) of the Act. We disagree.
The appellate court stated that based upon Hasabnis did not require the necessity of fees but did
require the fees to be reasonable. The court cited this case for the proposition that, While a trial
court may review the petitioning party’s billing records, it is not required to do so” although it
recognized that DeLarco, 313 Ill. App. 3d 107 (2000), had held that the trial court “ ‘must,’ in
making an award of fees pursuant to a contribution petition, ‘consider whether the attorney fees
charged by the petitioning party’s attorney are reasonable.’
Fee Equalization and “Unless Otherwise Ordered” of the Interim Fee Statute: The holding
in DeLarco regarding “fee equalization” not being a part of the contribution statute is significant
in light of the potentially confusing language of the statute. The interim fee portion of the statute
states that “unless otherwise ordered” all fees paid shall be deemed an advance against the
marital estate. The query was what the phrase “unless otherwise ordered” refers to. In one case
that I tried, the trial judge treated all fees paid by each party as an advance against the marital
estate — despite the fact that the lion's share of these fees were paid in fighting for custody on
the father's behalf due to the mother's active alcoholism. Her alcoholism created multiple delays
of the trial. Unfortunately, the case I had was tried shortly prior to the DeLarco decision and far
prior to the IRMO Holthaus, 899 N.E.2d 355 (Second Dist., 2008). I had hoped that the client
would have authorized an appeal of this matter but he did not do so. I previously wrote, “ I
believe the court has full discretion to choose to treat attorney's fees paid by each party through
the marital estate as tantamount to “dissipation” or to choose not to do so.”
Holthaus has addressed most directly the “unless otherwise ordered” language of Section 501(c-
1)(2) of IMDMA. Despite the potential waiver issue in terms of the issue not being argued at the
Gunnar J. Gitlin Gitlin Law Firm, P.C. www.gitlinlawfirm.com