Illinois has taken precautions to guard against this type of scenario. Illinois courts have provided that a party may obtain relief by a contribution of attorney fees from the other spouse, only where it is appropriate.

Section 508(a)

750 ILCS section 5/508(a) of the Illinois Marriage and Dissolution of Marriage Act (the "Act") provides, in pertinent part, as follows:

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 fees.

According to the statute, awards may be made in connection with the following:
 

1. The maintenance or defense of any proceeding under this Act.
2. The enforcement or modification of any order or judgment under this Act.
3. The defense of an appeal of any order or judgment under this Act, including the defense of appeals of post-judgment orders.
     (3.1)The prosecution of any claim on appeal (if the prosecuting party has substantially prevailed).
4. The maintenance or defense of a petition brought under Section 2-1301 of the Code of Civil Procedure seeking relief from a final order or judgment under this Act.
5. The costs and legal services of an attorney rendered in preparation of the commencement of the proceeding brought under this Act.
6. Ancillary litigation incident to, or reasonably connected with, a proceeding under this Act.

Although the trial court may order one party to pay the other's attorney fees, the primary obligation for payment rests on the party on whose behalf the services are rendered. In re Marriage of Mantei, 222 Ill.App.3d 933, 583 N.E.2d 1192 (4th Dist. 1991); In re Marriage of Walters, 238 Ill.App.3d 1086, 1100, 604 N.E.2d 432, 443 (1992).

Section 508(a) of the Act allows a trial court, after considering certain factors, to order either spouse to pay the reasonable attorney fees and costs of the other spouse. 750 ILCS 5/508(a); In re Marriage of Hassiespen, 269 Ill.App.3d 559, 569, 646 N.E.2d 1348, 1356 (1995).

The factors the court should consider when determining the responsibility of attorney fees include:

1. The allocation of assets and liabilities;
2. The allocation of maintenance;
3. The relative earning abilities of the parties, i.e. the ability of one party to pay, and the inability of the other party to pay; and
4. The identity of the party who precipitated the need for the current legal fees.

These factors should each be considered when determining an award of attorney fees. In re Marriage of Carr, 221 IIl.App.3d 609, 612, 582 N.E.2d 752, 754 (1991); In re Marriage of Cotton, 103111.2d 346, 469 N.E.2d 1077 citing Roth v. Roth, 52 Ill.App.3d 220, 367 N.E.2d 442 (1977).

There are specific burdens of proof a party must overcome to succeed on their attorney fees requests. An award of attorney fees is justified only where the spouse seeking relief demonstrates the following two factors:

(A) an inability to pay and

(B) the ability of the other spouse to pay.

Merely showing that the other spouse has a greater ability to pay attorney fees is not sufficient. In re Marriage of Piscine,158 IlI.App.3d 955, 511 N.E.2d 1157 (2nd Dist. 1987), In re Marriage of Bussey, 108 Ill,2d 286, 299-300, 483 N.E.2d 1229 (1985); In re Marriage of Marthens, 215 Ill.App.3d 590, 575 N.E.2d 3 (1991). Financial inability exists where payment would strip the person of the means of support and undermine his or her economic stability. In re Marriage of Bentivenga, 109 Ill.App.3d 967, 441 N.E.2d 336 (1982). Moreover, the burden of proof is on the party seeking the attorney fees to show that the fees incurred were reasonable and necessary. In re Marriage of Drone, 217 Ill.App.3d 758, 769, 577 N.E.2d 926, 933 (1991).

Inability to pay

According to In re Marriage of Krivi, 283 Ill.App.3d 772, 170 N.E.2d 1162 (5th Dist. 1996), (citing In re Marriage of Orlanda, 218 Ill.App.3d 312, 323, 577 N.E.2d 1334, 1343 (1991), financial inability exists where payment would undermine the economic stability of the spouse incurring the debt. In Krivi, the trial court ordered the respondent to pay $19,088.19 of petitioner's $27,175.92 of attorney fees and costs. The basis for the trial court's decision was that respondent had a more secure and better-paying job and that petitioner was unable to meet her current basic expenses. The appellate court reversed the holding of the trial court and ordered petitioner to pay her own attorney fees.

The reversal of the trial court's holding was based on the income of the parties, and the ability of each party to pay. In 1991, petitioner had gross income of $20,476. Petitioner worked an average of 26.78 hours per week for the first ten weeks of 1992. The court reasoned that there was no reason why petitioner could not work additional hours to earn additional income and noted that if petitioner worked a regular 40-hour work week, she would gross over $28,000 per year.

In ruling against the petitioner, the court found that the evidence did not support the trial court's holding that petitioner was unable to meet her living expenses. The court opined:

Although petitioner may not have a lot of extra money left over after paying her living expenses ... we do not believe that she has demonstrated an inability to pay her own attorney fees, nor do we believe that her economic stability would be undermined if she had to pay the attorney fees. The ability to pay does not mean the ability to pay without pain or sacrifice. (Emphasis added) Krivi at 1169 (citing In re Marriage of McCoy, 272 IIl.App.3d at 132, 650 N.E.2d at 7).

The court further commented that the petitioner could increase her hours of employment or obtain a part-time job in order to generate additional income. Id. (citing In re Marriage of Phillips, 244 Ill.App.3d 577, 595, 615 N.E.2d 1165, 1179 (1993) (court may consider a party's prospective income, as well as his or her current income, in awarding attorney fees). Moreover, a spouse's income from both maintenance and employment, as well as her academic background, can be considered in determining one's inability to pay for their attorney fees. Id.

In a Third District appellate case, an award of attorney fees was reversed when the party petitioning for fees pro-duced no evidence to support her assertion that she was unable to pay her own fees. In In re Marriage of Sparagowski, 232 Ill.App.3d 257, 596 N.E.2d 210, the circuit court entered a judgment dissolving the marriage between the parties. At the time of the divorce, there were two children, ages six and three. The petitioner was award-ed custody; the respondent was ordered to pay child sup-port. On October 5, 1989, the petitioner filed a motion to modify the child support order. Following a hearing, the circuit court increased child support and found that the respondent should pay petitioner's attorney fees.

The respondent appealed and the appellate court reversed find-ing that the petitioner failed to satisfy the first prong of the test for obtaining attorney fees, i.e. that she was financially unable to pay her own attorney fees.

The evidence the court considered in their ruling was that petitioner grossed $21,511 per year, had received annual cost-of-living increases, owned a home worth $45,000 with equity of $18,000, and owned an automobile. Although the petitioner testified that she had to borrow money to meet certain expenses in connection with her home, the petitioner did not testify that she was unable to make these payments; nor did she introduce any evidence to support her assertion that she was unable to pay her attorney fees. Sparagowski at 211. Based on the foregoing evidence, the court held that requiring the petitioner to pay her own attorney fees would not strip her of her means of support or undermine her economic stability. Formulating this conclusion, the court did not address the question of the respondent's ability to pay, because the respondent had failed to meet the burden of showing her inability to pay.
 

A significant factor courts must consider when distributing attorney fees is whether the party seeking contribution from the spouse has already demonstrated an ability to pay by paying a portion of her fees incurred. In Mantei, the affidavit of respondent's attorney showed fees and costs incurred and anticipated to be $19,688. Petitioner's attorney fees and costs were $23,920 as of April 26, 1990. According to her amended financial affidavit, petitioner had already paid $11,654 of her attorney fees as of October, 1989. The court stated that "while petitioner need not be destitute in order to receive an award of attorney fees, the respondent need not be destitute to avoid paying petitioner's attorney fees. Neither party's estate should be exhausted, nor their economic stability undermined." Mantei at 1198. The court went on to note that petitioner had demonstrated her ability to pay by already having paid approximately half of the fees.

Ability to Pay

If the court finds that the petitioning spouse has established that they have an inability to pay their attorney fees, the court must then examine whether the other spouse has the ability to pay the fees. However, simply because one party has significant assets and income does not necessarily establish an ability to pay.

In In re Marriage of Riech, petitioner was seeking contribution from the respondent. Respondent was found not to have the ability to pay even though he had superior earning power and earned more than twice what petitioner earned. In ruling against petitioner, the court found persuasive the fact that respondent's monthly expenses exceeded his monthly income, and that petitioner's monthly expenses did not exceed her monthly income.

In Krivi, after considering what proportion of respondent's assets were in liquid form, and allowing deductions from gross income to net income to include deferred compensation, credit union savings, and retirement, the court was unable to see how respondent, despite his greater earning capacity, could possibly pay the bulk of petitioner's attorney fees and continue to pay his own monthly expenses. As the court in Krivi reasoned: "Inflicting financial ruin on the party being asked to pay the attorney fees is no more appropriate than requiring the fee-seeking spouse to suffer financial ruin." Krivi at 1169.

Reasonableness

When a court considers an award of attorney fees, one of the additional factors the court must consider is the reasonableness of those fees incurred. In determining whether the amount of attorney fees is reasonable, the factors to be considered are: "(1) the skill and standing of the attorneys employed; (2) the nature of the controversy, the novelty and difficulty of the questions at issue; (3) the amount and importance of the subject matter, especially from a family law standpoint; (4) the degree of responsibility involved in the management of the case; (5) the time and labor required; (6) the usual and customary charge in the community; and (7) the benefits resulting to the client." In re Marriage of Calisoff, 176 Ill.App.3d 721, 729, 531 N.E.2d 810, 817 (1st Dist. 1988), (citing In re Marriage of Thornton, 89 Ill.App.3d 1078, 1093, 412 N.E.2d 1336, 1348 (1980).

The court in In re Marriage of Uehlein, 265 Ill.App.3d 1080, 638 N.E.2d 706 analyzed the reasonableness of attorney fees incurred. In Uehlein, counsel for respondent filed a petition for attorney fees, paralegal fees, and costs. The petition sought a total award of $92,012.43. Of this aggregate amount, $75,573.50 consisted of attorney fees for services performed by respondent's attorney, and $12,467 consisted of paralegal fees for services performed by the wife of respondent's attorney. The remaining $3,971.93 consisted of costs incurred in pursuing the litigation. In finding the fees to be excessive, the trial court specifically noted that the record keeping of respondent's attorney was "lacking" and that the fee petition was excessive. Uehlein at 715. The court found that the petition reflected much waste of time, inefficiency, repetition of work, and double charging of time by respondent's attorney and the paralegal for the same conversations between them. The court stated that, based upon improper record keeping and improper billing, the fee petition was excessive. Upon consideration of the fee petition, with the reduction based upon excessive or improper fees, the court awarded attorney fees and costs in the amount of $35,000.

Fault of Party

Asking a spouse to contribute to the other spouse's fees is a difficult and emotional issue in any case. It is even more difficult in situations where the spouse seeking contribution has clearly been unreasonable and litigious throughout the litigation. Fortunately, while not specifically set forth in the statute, Illinois courts are allowed to consider a party's conduct in awarding or denying fees. According to In re Marriage of Cotton, 103 Ill.2d 346, 469 N.E.2d 1077, the court must give weight to the party who precipitated the need for legal fees. Cotton at 1085 (citing Roth v. Roth, 52 Ill.App.3d 220, 367 N.E.2d 442 (1977). In determining whether to award attorney fees, the trial court may consider a party's misconduct. Cotton at 1077. In Cotton, the court disallowed contribution by respondent to petitioner's attorneys because petitioner precipitated the need for the legal fees.

Conclusion

Illinois courts attempt to protect the spouse who is willing to be reasonable. As opined by the Fourth District appellate court in In re Marriage of Mantei:

"A party may not enter into such a battle and expect to come out unscathed. While we recognize the purpose of the statute is to allow a spouse to contest the dissolution on an equal footing so that concerns about incurring large attorney fees will not coerce a litigant into conceding meritorious claims, it is an unreasonable expectation to anticipate that the trial court will automatically require the other party to pay such attorney fees regard-less of the party's conduct during the litigation. There are times when the failure to compromise is frivolous. The parties should have been aware of the expenses they were incurring in order to split up the limited pot they were contesting." 222 Ill.App.3d 933, 942, 583 N.E.2d 1192, 1198 (4th Dist. 1991).

Parties must take responsibility and be held accountable for their actions in divorce proceedings. To force a non-litigious spouse to contribute to the other spouse's fees often is a social injustice which only encourages endless litigation in our court systems. Practitioners should remember the foregoing case law in order to protect their client's from such potential injustice.