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New York Divorce & Family Law |
The award of attorney fees and the amount to be paid by the parties is within the discretion of the trial court and will not be disturbed absent a clear showing of an abuse of discretion. An award of attorney fees in an Illinois divorce proceeding is ordinarily in the nature of support. Attorney fees may be awarded to a litigant only when they are expressly authorized by statute or by agreement of the parties, and a trial court is bound by the statutory grant. The allowance of attorney fees is within the sound discretion of the court. Under this section the legislature has provided the circuit court with the authority to award attorney fees incurred by either spouse in connection with proceedings under this Act.
A
court
may
order
the
other
spouse
to
pay
a
reasonable
amount
for
attorney
fees
for
services
rendered
in
a
proceeding
under
this
Act,
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including
the
defense
of
appeals
from
post-judgment
orders
or
petitions
seeking
relief
from
final
judgments
under
the
Act.
This
section
authorizes
an
attorney
in
a
pending
dissolution
proceeding
to
recover
his
earned
fees
from
either
his
own
client
or
the
other
party.
The
general
rule
is
that
a
party
seeking
an
award
of
attorney
fees
must
show
his
own
financial
inability
to
pay
and
the
financial
ability
of
the
other
spouse;
however,
a
party
who
must
use
judicial
process
to
obtain
compliance
with
the
terms
of
a
decree
of
dissolution
is
entitled
to
reasonable
attorney
fees,
even
absent
a
showing
of
his
own
ability
to
pay.
The
Act
contains
no
language
limiting
the
trial
court's
authority
to
award
attorney
fees
when
presented
with
a
proper
fee
petition.
To
justify
an
award
of
attorney
fees,
the
party
seeking
relief
must
demonstrate
financial
inability
to
pay
and
the
ability
of
the
other
spouse
to
do
so.
An
award
of
attorney
fees
is
justified
where
the
spouse
seeking
relief
demonstrates:
(1)
financial
inability
to
pay,
and
(2)
the
ability
of
the
other
spouse
to
pay.
Financial
inability
exists
where
payment
would
strip
the
person
of
the
means
of
support
and
undermine
her
economic
stability.
While
the
trial
court
should
consider
the
property
received
by
each
party
and
their
overall
economic
status
before
allocating
responsibility
for
payment
of
attorney's
fees,
there
is
nothing
in
this
section
to
prohibit
the
trial
court
from
requiring
the
petition
on
fees
to
be
filed
and
the
hearing
to
be
held
prior
to
the
disposition
of
the
property
and
maintenance/child
support
issues.
This
section
has
been
construed
to
authorize
prospective
fee
awards
in
appropriate
circumstances,
but
such
awards
should
be
made
cautiously.
The
allowance
of
attorney
fees
and
costs
in
exercising
its
discretion,
the
court
may
consider,
in
addition
to
the
abilities
of
the
parties
to
pay,
the
questions
at
issue,
the
significance
or
importance
of
the
subject
matter,
the
degree
of
responsibility
involved,
the
standing
and
skill
of
the
person
employed,
and
the
time
and
labor
involved.
An
award
of
attorney
fees
is
not
mandatory,
but
discretionary.
Under
New
York
divorce
law,
the
responsibility
to
pay
attorney
fees
is
generally
determined
by
the
relative
income
of
the
parties.
Although
subsection
(a)
allows
for
an
award
of
attorney
fees
made
in
connection
with
the
defense
of
an
appeal,
it
has
no
specific
provision
to
negate
the
general
rule
that
the
filing
of
a
notice
of
appeal
deprives
the
trial
court
of
further
jurisdiction.
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