Can I Ask For Attorney’s Fees In My Parentage Case Even Though We Were Never Married?

 Posted on July 26,2022 in Divorce

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.” 

Section 501(c-1) of the Illinois Marriage and Dissolution of Marriage Act sets out specific factors for obtaining an “interim” fee award, but these are the most important factors to understand: 

• 501(c-1)(2) - provides that an interim award of fees (while the case is still pending) can be modified in the future. If the other party is ordered to pay fees for more than what is actually used for fees, that overpayment can be returned to the paying party. This is called “without prejudice.” 
• 501(c-1)(3) – this is a provision regarding a phrase used called “leveling the playing field.” It provides that an interim fee award shall be “in an amount necessary to enable the petitioning party to participate adequately in the litigation after determining one party’s ability to pay and the other party’s inability to pay reasonable amounts. 

This new interim fee system was an attempt to address the problem of the “economically disadvantaged spouse,” where one spouse uses his or her greater control of assets or income as a litigation tool, making it difficult for the disadvantaged spouse to participate adequately in the litigation. Many times, you will see the wealthier spouse use excessive litigation as a means to bully or harass the other party and to drive up the costs of litigation knowing that the other party cannot afford for adequate legal representation. A party in a case should be prohibited from using his or her relative wealth as a litigation tool or an attempt to intimidate the disadvantaged spouse, as it is against public policy. The award of interim fees from the Court is meant to “level the playing field.” As such, both parties should be on equal footing when it comes to their representation during the case

The Appellate Court in In re Stella, found that while the Parentage Act makes no specific reference to interim attorney’s fees, it guides the Courts to look at Sections 508 and 501 of the Illinois Marriage and Dissolution of Marriage Act, which do reference interim attorney’s fees. And, since the Illinois Marriage and Dissolution of Marriage Act incorporates the Illinois Parentage Act, interim fees also apply to parentage cases

The Stella Court also found that a party should be allowed to seek and obtain interim attorney’s fees from the other parent, because the Parentage Act essentially deals with issues that regularly arise in Marriage Act proceedings, such as custody, support, guardianship, and visitation. Providing interim attorney’s fees in Parentage Act and Marriage Act cases well might produce similar public policy benefits such as: avoiding long delays in litigation, discouraging use of higher wealth and assets as a litigation tool, encouraging attorneys to take on parentage cases, and reducing the risk of simply outlasting the disadvantaged party. The Court found that the lack of a marital estate has no particular bearing on the resolution of legislative intent

If you have questions about your parentage act and attorney’s fees, please contact our firm for a free consultation

Cases Used: 

IRMO Beyer, 324 Ill. App.3d at 310

In re Stella, 353 Ill. App. 3d 415

Leveling the Playing Field in Divorce: Questions and Answers about the New Law, 85 Ill. B.J. 410, 411 (1997).

Heiden v. Ottinger, 245 Ill. App. 3d 612, 616.