Leveling the Playing Field by Recovering Attorney Fees

Does Recovering Attorney Fees from the Opposing Party Diminish the Importance of our Adversarial System?

Well known to Illinois attorneys and most clients is that a party may seek attorney fees from the opposing party pre or post-divorce decree. 750 ILCS sections 501, 503, and 508 provide the relevant parts to seek attorney fees. Likewise, California Family Code section 2030 and 2032 provide the same.

Although both attorneys and clients love these statutes, why were they enacted? In an article I recently read, the overall purpose of the Illinois statutes is to “enable parties to have equitable access to representation, encourage attorneys to represent economically disadvantaged spouses, and prevent abuse of the dissolution system by both parties and their attorneys.”[1]

However, I advise you to remember the model upon which our legal system is based.

First, unlike many of our European counterparts where there is not a “fierce competition” between the attorneys and where the losing party pays for the winning party’s court fees and costs, the American court system is almost the exact opposite. The American legal system was developed around the theme that each party shall bear his or her own attorney fees and the winning party will prevail, in large part, due to the competence of his or her attorney and the procedures the attorney takes during the course of the proceedings. So what is to say about paying for the opposing attorney’s fees? Does this law go against the “American way?”

In sum, Illinois and other similar state statutes were enacted to “level the playing field.”[2]What we must consider is that there is much more at stake in family law cases rather than civil cases. In the general practice of family law, a person’s entire personal life has crumbled. The one you used to love is no longer the love of your life. In fact, she or he is probably your worst enemy at the moment. Your child or children are being emotionally abused by your divorce and will most likely remember these years for the rest of their life. On top of all of the above, your entire financial estate is about to be ripped to shreds. Well, I applaud everyone who has the emotional courage to handle such a situation. However, should the more financially secure spouse be the one who obtains more rights to the child or children? Should the wealthier spouse, who can afford a better attorney, secure a lower spousal support payment? Family law is not in the business of correcting a wrong like that of civil law but rather family law, in part, is in the business of putting spouses in a financially secure position based upon their marital interest in the estate and ensuring any order or judgment is made in the best interests of the child.

Although “leveling the playing field” may be in direct opposition to the American theme of adversarial competition in the courtroom, you must always ask whether one spouse should be entitled to more rights to the children just because the former has more wealth? Should the marital estate, which was built by both parties, be reduced to nothing for one spouse just because the other spouse can afford a better attorney? If you can answer these questions, than you can decide whether “leveling the playing field” is good legislation.

[1] Alison G. Turoff. “Recovering Attorney Fees From the Opposing Party in Illinois Divorces Cases,” 92 Ill. Bar J. 462 (Sept. 2006)

The purpose of California Family Code section 2030 is simply “to ensure that a party in need has adequate legal representation to litigate family law issues.” In re Marriage of Kelso, 67 Cal. App. 4th 374, 384-385 (1998).

[2] See Kaufman, Litwin, & Feinstein v. Edgar, 301 Ill. App. 3d 826, 836 (1998), appeal denied, 182 Ill. 2d 551 (1999).

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