This question is commonly asked by clients and is normally shaken off by attorneys as “unlikely.” Most attorneys will tell their clients that the only way that they can recover attorney’s fees in a parentage action is if one party is held in contempt or is intentionally increasing the cost of litigation. However, the relevant case law says otherwise, and it actually allows for one party in a parentage case to seek “interim attorney’s fees” from the other. “Interim” means while the case is pending.

There are two laws at play in this issue, the Illinois Marriage and Dissolution of Marriage Act and the Illinois Parentage Act of 1984. The Illinois Marriage and Dissolution of Marriage Act incorporates the Illinois Parentage Act of 1984 in its entirety. The Illinois Marriage and Dissolution of Marriage Act refers to divorce cases while the Illinois Parentage Act of 1984 applies to parties that have never been married. This blog will give you a look at when you may be awarded attorney’s fees in your case and what kind of fees you can try and recover.

In 1997, the Illinois legislature created a new procedure for awarding attorney’s fees under the Illinois Marriage and Dissolution of Marriage Act. The legislature amended the law, which now says that “the court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order any party to pay a reasonable amount for his own or the other party’s costs and attorney’s fees. Interim attorney’s fees and costs may be awarded from the opposing party, in accordance with subsection (c-1) of Section 501.” 

While unfortunate, it is extremely common for divorce, orders of protection, and criminal domestic violence cases to be intertwined. In many situations, divorce and/or parentage cases begin with the filing of a civil order of protection, typically an emergency petition and mostly without notice to the other party. Orders of protection are governed by the Illinois Domestic Violence Act of 1986. Orders of protection protect family or household members from the actions of another. In order to obtain an order of protection, the petitioner must prove: a) that the respondent is a relative or household member, b) that the respondent has abused the petitioner, and c) that the Court has jurisdiction of the matter. “Abuse” is a broad term under the Illinois Domestic Violence Act, and is defined as: physical abuse, harassment, interference with personal liberty, intimidation of a dependent, or willful deprivation.  What classifies as abuse under these broad definitions varies case by case and is impacted by both the severity and frequency of the circumstances.

A party seeking an order of protection against a spouse, fiancé, or partner may ask the court to protect not only themselves from the other party, but also the children as well, but only if the children have been subject or witness to the abuse.  To do this, the person seeking the order of protection (the petitioner or victim) must list the children as “protected parties” and state any abuse that the children may have witness or fell victim to by the other party (the respondent or abuser).   As a remedy for an order of protection, in addition to prohibiting contact of any kind between the petitioner and the respondent, the court can also prohibit the respondent from having any contact with the minor children, suspend any and all parenting time between the respondent and the children or establish a supervised or other reasonable parenting schedule. Additionally, the court can grant the petitioner exclusive possession of the shared residence, meaning that the respondent would be prohibited from entering the residence until further order of court. The court also has the authority on a plenary order of protection to order the abuser to attend counseling and turn over any firearms. 

Although many orders of protection are civil in nature, the State’s Attorney’s Office can decide whether or not to prosecute the respondent for the crime of domestic violence as a result of any physical abuse that occurred, provided the victim wishes to press charges. If that happens, the court will set conditions of the respondent’s bond. Most of the time, those bond conditions include no contact of any kind with the petitioner and no contact of any kind with the children. Additionally, the bond conditions can prohibit a respondent from leaving the State of Illinois.

For most parents, the issue of when and under what circumstances they will see their children is of utmost concern in their divorce or parentage case. In fact, the allocation of parenting time between parents can often be one of the most challenging issues for attorneys to address in a case since each family’s circumstances are so unique. For many parents who have been extremely involved in their children’s lives, the hope is for an equal (“50/50” or “shared”) parenting schedule. As lawyers, we are often asked whether a shared parenting schedule is the starting point in Illinois. However, an equal parenting schedule is not the default as it is in some other states. Therefore, it is important to understand when an equal parenting time schedule might be appropriate and what key elements would support the implementation of a 50/50, or shared schedule.  

It used to be the case that Courts viewed equal parenting schedules with extreme caution, especially in cases where the parents do not get along and have too much animosity toward one another that they are unable to effectively co-parent.   However, in more recent times, shared parenting schedules are implemented much more frequently.  In Illinois, the law requires the Court to allocate parenting time in accordance with the children’s best interests. There are many factors that the Court will look at to determine what is in the children’s best interests in a given case, but perhaps one of the most important is “the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.” This factor is particularly significant as it relates to a request for a 50/50 parenting schedule, because both parents need to be able to communicate and cooperate with one another in order to make an equal parenting schedule successful. 

Additionally, determining whether an equal parenting schedule is appropriate for you will involve an individual assessment of your family’s unique circumstances. For example, this assessment would take into account things such as each parent’s work schedule, the children’s needs, and the children’s school and extracurricular activity schedules, the children’s ages and the parties’ distance from each other’s homes. For example, if you have a demanding work schedule and the other parent is a stay-at-home parent, it would be unrealistic to expect that a 50/50 parenting schedule would be implemented absent exigent circumstances. 

If you or your ex-spouse is planning to retire soon, you may be wondering how it may affect your maintenance obligation or award. In general, maintenance is modifiable unless you and your ex-spouse specifically agreed upon divorce that maintenance would be “non-modifiable” which is rare (and actually considered a property settlement). Depending on what the divorce decree says, the payor spouse may still have an obligation to pay maintenance even after they retire. For example, if you were ordered to pay permanent maintenance to your ex-spouse, that obligation would likely continue even after retirement but possibly with a substantial reduction, depending on the circumstances of your case.

Illinois law contains several scenarios in which a maintenance obligation would automatically terminate including the remarriage of the party receiving maintenance, the death of either party, or the cohabitation of the party receiving maintenance with another person on a resident, conjugal basis.  What is important to note is that the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) does not contain a provision that allows maintenance to automatically terminate upon retirement.  Termination is different than modification, however, and the statute does afford the payor spouse the ability to file a petition with the court seeking to modify their maintenance payments based upon their retirement or other reason they are unable to pay the ordered amount.

Section 510 of the IMDMA Act provides that a maintenance obligation may be modified or terminated “upon a showing of a substantial change in circumstances.” When determining whether a substantial change in circumstances exists, the court can consider the change in employment status of either party, such as retirement, or the increase or decrease of either party’s incomes. If, upon your retirement, the payor’s financial circumstances and resources do not change significantly, and their income will be similar to what they were receiving before they retired, then their spousal support payments will likely continue to be the same. By contrast, if the payor can show that their financial circumstances have drastically changed as a result of their retirement, such that they can no longer afford to continue paying spousal support at its current amount, then the court can order that your maintenance payments be reduced or terminated completely. However, whether a modification or termination of maintenance will be granted is highly dependent on the facts of each individual case.

 What is parentage and how is child support established for unwed parents?

Parentage refers to a person who is the legal parent of a child, which may not necessarily be the natural or biological parent. In legal actions where a parent is seeking child support or allocation of parenting time and parental responsibilities, parentage or paternity is the first issue that needs to be determined to establish standing.

 In Illinois, the presumption is that when parents are married or in a civil union within three hundred days prior to the birth of a child they the parents of the child. This presumption does not exist for unwed couples. Therefore, parentage must be established prior to an order for child support, parenting time, or parental responsibilities is entered by the courts.  Under the Illinois statutes, every child is entitled to physical, mental, emotional, and financial support from his or her parents regardless of the legal relationship between the parents.

The parent with the primary responsibility for the child can seek financial support from the other party. In Illinois, if the alleged father is denying paternity, the mother may pursue child support through an administrative paternity order or through an order of paternity in a regular court proceeding.