Can An Illinois Divorce Attorney Work On Contingency?

We have all seen hundreds of advertisements over the years where a lawyer says “you don’t pay, if we don’t win.” That sounds like a good deal. After all, you want to win your divorce. Your divorce lawyer should just get some of what your divorce lawyer “wins” from your spouse.

Contingency fees are common in personal injury cases and other matters where there is a clear winner and loser of the case.

A contingent fee is “a fee charged for a lawyer’s services only if the lawsuit is successful or is favorably settled out of court. Contingent fees are usually calculated as a percentage of the client’s net recovery (such as 25% of the recover if the case is settled, and 33% if the case is won at trial” Black’s Law Dictionary (11th ed. 2019)

Illinois divorce lawyers are not allowed to enter into contingency fee agreements with their clients, however.

“A lawyer shall not enter into an arrangement for, charge, or collect:(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof” Ill. Sup. Ct. R. 1.5(d)(1)

The nature of a divorce makes a contingency fee impracticable.

There are assets to be divided not merely saved. How do you put a percentage on what you did not have to divide? Marital debts are also divided in an Illinois divorce. How is a divorce lawyer supposed to get a percentage of a debt their client did not have to pay?

Should a percentage of child support awarded go to a divorce lawyer? Child support is for the children, not the divorce lawyer.

Maintenance (formerly known as alimony) is for the purpose of maintaining “the needs of each party” 750 ILCS 5/504(a)(2). Any percentage of a maintenance award contingently paid to an attorney would automatically not satisfy the needs of that spouse.

The spouse that wishes that a divorce attorney could take their case on contingency is always the spouse that doesn’t have access to ANY of the family’s money. So, they’re happy to pay a percentage of something because that is better than getting all of nothing.

The Illinois Marriage And Dissolution Of Marriage Act has a variety of ways to ensure that each spouse will be appropriately represented in an Illinois divorce based on the resources of the entire family.

Hiring A Lawyer With No Money For An Illinois Divorce

The closest thing to a contingency fee agreement is the ability to hire a divorce lawyer with no money because the mere possibility that your spouse will pay their fees.

“A petition for interim fees that seeks an order for the payment of an initial retainer to retain an attorney shall have attached to it an affidavit from the attorney to be retained that the attorney has been contacted by the moving party and the attorney has agreed to enter an appearance if the court grants the relief requested, together with a certificate from the moving party that the interim fees granted will only be used by the moving party to retain the attorney. Any interim fees granted pursuant to this paragraph shall be paid directly to the identified attorney.” 750 ILCS 5/501(c-1)(1.5)

If your spouse is a verifiable millionaire who has already hired his own high-priced lawyers then taking a case on for no money and demanding that the rich spouse pay your attorney’s retainer fees may be acceptable to your choice of divorce lawyer.

Most divorce lawyer’s, myself included, want you to have some skin in the game. If you can’t find a few thousand dollars from your own savings or from a friend or family member, that’s a signal.

Getting Your Spouse To Pay Your Attorney’s Fees In Your Illinois Divorce

After the initial retainer is paid and your attorney’s appearance is filed, that attorney can immediately start demanding that your spouse pay your attorney’s fees.

“Interim attorney’s fees and costs may be awarded from the opposing party, in a pre-judgment dissolution proceeding in accordance with subsection (c-1) of Section 501” 750 ILCS 5/508(a)

“In assessing an interim award, the court shall consider all relevant factors, as presented, that appear reasonable and necessary, including to the extent applicable:(A) the income and property of each party, including alleged marital property within the sole control of one party and alleged non-marital property within access to a party;(B) the needs of each party;(C) the realistic earning capacity of each party;(D) any impairment to present earning capacity of either party, including age and physical and emotional health;(E) the standard of living established during the marriage;(F) the degree of complexity of the issues, including allocation of parental responsibility, valuation or division (or both) of closely held businesses, and tax planning, as well as reasonable needs for expert investigations or expert witnesses, or both;(G) each party’s access to relevant information;(H) the amount of the payment or payments made or reasonably expected to be made to the attorney for the other party; and(I) any other factor that the court expressly finds to be just and equitable.” 750 ILCS 5/501(c-1)

These interim fees are awarded quickly. Interim fees are decided on a summary basis.

“Except for good cause shown, a proceeding for (or relating to) interim attorney’s fees and costs in a pre-judgment dissolution proceeding shall be nonevidentiary and summary in nature.” 750 ILCS 5/501(c-1)

The judge will look at nothing more than the parties’ financial affidavits, their supporting documents and then request from all attorneys “the amount of the payment or payments made or reasonably expected to be made to the attorney for the other party” 750 ILCS 5/501(c-1)(H)

In reality, the amount the monied spouse has paid their attorneys at that time will determine how much your attorney will be paid at that time. What better barometer of capacity to pay attorney’s fees than attorney’s fees already paid could there be?

Getting Your Spouse To Pay Your Attorney’s Fees At The End Of Your Divorce

After the divorce is finalized, either by agreement or by trial, either attorney can ask to be paid their remaining balance owed (after all, what debt is more “marital” than a divorce lawyer’s fees) from the marital assets allocated to either party.

“After proofs have closed in the final hearing on all other issues between the parties (or in conjunction with the final hearing, if all parties so stipulate) and before judgment is entered, a party’s petition for contribution to fees and costs incurred in the proceeding shall be heard and decided, in accordance with the following provisions:

…

Any award of contribution to one party from the other party shall be based on the criteria for division of marital property under this Section 503 and, if maintenance has been awarded, on the criteria for an award of maintenance under Section 504.” 750 ILCS 5/503(j)

The factors that an Illinois court can consider for awarding final fees are usually based on what the parties were awarded and what the parties can be expected to earn in the future and what the parties needs will be in the future.

Factors include “the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;(9) the custodial provisions for any children;(10) whether the apportionment is in lieu of or in addition to maintenance;(11) the reasonable opportunity of each spouse for future acquisition of capital assets and income” 750 ILCS 5/503(d) and “the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance as well as all financial obligations imposed on the parties as a result of the dissolution of marriage;(2) the needs of each party;(3) the realistic present and future earning capacity of each party;(4) any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage;(5) any impairment of the realistic present or future earning capacity of the party against whom maintenance is sought” 750 ILCS 5/504

The Illinois divorce judge should go through each of these factors but after a long trial and strong opinions about you, your spouse and both opinions, the award of final attorneys’ fees is likely to be based on a totality of factors and feelings. If the attorneys are not awarded fees from the marital estate, the attorneys will then turn to their own client to have their outstanding fees paid.\.

If Your Spouse Does Not Pay Your Attorney’s Fees…You Will!

Your divorce attorney will be awarded fees from the marital estate under 750 ILCS 5/503(j) but there may be attorneys’ fees outstanding. You will be responsible for those remaining attorney attorneys’ fees and your lawyer (if they are any good) will collect them.

“Final hearings for attorney’s fees and costs against an attorney’s own client, pursuant to a Petition for Setting Final Fees and Costs of either a counsel or a client, shall be governed by the following…The court shall first consider the written engagement agreement and, if the court finds that the former client and the filing counsel, pursuant to their written engagement agreement, entered into a contract which meets applicable requirements of court rules and addresses all material terms, then the contract shall be enforceable in accordance with its terms, subject to the further requirements of this subdivision (c)(3). Before ordering enforcement, however, the court shall consider the performance pursuant to the contract. Any amount awarded by the court must be found to be fair compensation for the services, pursuant to the contract, that the court finds were reasonable and necessary.” 750 ILCS 5/508(c)(3)

Can A Divorce Lawyer Ask For Extra Money If They Do A Good Job?

Despite all the strict rule about contingency agreements, a divorce lawyer can construct their attorney-client contract to include “enhancement provisions.”

An enhancement provision might be something like “if you get to keep the house, I get an additional $10,000”

Any enhancement provision in an Illinois divorce lawyer’s contract must first pass the tests laid out in the Illinois Rules Of Professional Conduct 1.5(a)

“A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;(3) the fee customarily charged in the locality for similar legal services;(4) the amount involved and the results obtained;(5) the time limitations imposed by the client or by the circumstances;(6) the nature and length of the professional relationship with the client;(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and(8) whether the fee is fixed or contingent.” Ill. Sup. Ct. R. 1.5(a)

If reasonable under the rules (in which a pure contingency contract would clearly not be reasonable), the terms of the contract must be sufficiently clear.

“[T]he agreement must also be sufficiently definite so that its terms are reasonably certain and able to be determined.” Halloran v. Dickerson, 287 Ill. App. 3d 857, 868 (1997)

 “The terms of a contract will be found to be definite and certain, and therefore the contract enforceable, if a court is able to ascertain what the parties have agreed to, using proper rules of construction and applicable principles of equity.” Midland Hotel Corp. v. Reuben H. Donnelley Corp., 118 Ill. 2d 306, 314 (1987)

“To meet the definiteness requirement, the parties must provide a practicable, objective method for determining this price or compensation, not leaving it to the future will of the parties themselves” GRUND & LEAVITT, PC v. Stephenson, Ill: Appellate Court, 1st Dist., 4th Div. 2022 (citations and quotations omitted)

Here is the problem: the more certain and definite the enhancement provision…the more it looks like a contingency contract which, once again, makes the contract impermissible under Illinois Rule Of Professional Conduct 1.5(d)(1)

“A lawyer shall not enter into an arrangement for, charge, or collect:(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof” Ill. Sup. Ct. R. 1.5(d)(1)

People already do not like divorce lawyers. Imagine how people would feel if divorce lawyers were also incentivized to get the largest share of the marital estate and support based on contingency fees. Contingency fees in divorce would turn a job of counsel into a business of percentages and the family (in whatever form it remains) would be the one paying the price.

If you would like to discuss your divorce and how you are going to pay for it, contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce attorney.

source https://rdklegal.com/can-an-illinois-divorce-attorney-work-on-contingency/