Attorney’s Fees Under 750 ILCS 5/508(b) for Frivolous or Bad-Faith Litigation

Attorney’s Fees Under 750 ILCS 5/508(b) for Frivolous or Bad-Faith Litigation

Statutory Overview: Section 508(b) of the Illinois Marriage and Dissolution of Marriage Act mandates fee-shifting when one party’s improper conduct forces needless litigation. In relevant part, it provides that if a party’s failure to comply with a court order was “without compelling cause or justification,” the court shall order that party to pay the other side’s reasonable attorney fees (In re Marriage of Patel, 2013 IL App (1st) 112571). It further states that “[i]f at any time a court finds that a hearing under this Act was precipitated or conducted for any improper purpose,” the court “shall allocate fees and costs of all parties for the hearing to the party or counsel found to have acted improperly.” Improper purposes explicitly include “harassment, unnecessary delay, or other acts needlessly increasing the cost of litigation.” (Defending A Petition For Attorney's Fees In An Illinois Divorce) In other words, fees are mandatory under §508(b) when a litigant engages in frivolous or bad-faith tactics that violate court orders or needlessly drive up litigation costs (In re Marriage of Gildersleeve). Notably, a contempt finding is not a prerequisite to relief – a party can be made to pay under §508(b) even without a formal contempt, so long as their lack of justification is shown (case reference).

Illinois Supreme Court Guidance

Illinois courts recognize §508(b) fee awards as a form of sanction for litigation abuse, distinct from need-based fee contributions. The Illinois Supreme Court has emphasized that unlike ordinary fee petitions (which consider each spouse’s financial ability), §508(b) imposes fees without regard to ability to pay when its criteria are met (In re Marriage of Gildersleeve). For example, in In re Marriage of Schneider, the Court reaffirmed that a party who unjustifiably disobeys a dissolution judgment effectively triggers a mandatory fee award under §508(b) (to relieve the innocent spouse of the financial burden of enforcement) (In re Marriage of Patel). Likewise, in Blum v. Koster, the Supreme Court noted that §508(b) applies fully in post-decree proceedings, underscoring that a court must order the offending party to pay all reasonable fees caused by hearings brought for “an improper purpose” such as “harassment [or] unnecessary delay.” (Illinois Attorney's Fees and the Leveling the Playing Field Act) Although Blum primarily dealt with other issues, it confirmed that §508(b) fee-shifting is available as a remedy for post-decree litigation misconduct. In sum, the high court recognizes that §508(b) is a “dead serious” fee-shifting provision, intended to deter litigants from flouting court orders or abusing the judicial process (reference).

First District Appellate Cases

• In re Marriage of Harrison, 388 Ill. App. 3d 115 (1st Dist. 2009):

  Harrison is a leading First District case interpreting §508(b). The appellate court made clear that fee awards under §508(b) are “mandatory, not discretionary.” (In re Marriage of Gildersleeve) In Harrison, a father had repeatedly attempted to modify custody and engaged in conduct the mother alleged was vexatious and without merit. The trial court denied the mother’s fee petition, but the First District vacated that decision for applying the wrong standard. It held that if the trial court finds a party’s motion or hearing was brought for an improper purpose (such as to harass or cause unnecessary delay), the court has no discretion – it must award fees against the offending party. The Harrison court noted that §508(b)’s “shall” language leaves little room for leeway: once lack of compelling justification or an improper purpose is shown, the only issue is the reasonableness of the fees, not whether to award them. Harrison thus stands for the proposition that a pattern of baseless, harassing post-decree filings can trigger a full fee award to the victimized party.

• In re Marriage of Davis, 292 Ill. App. 3d 802 (1st Dist. 1997):

  The First District in Davis similarly underscored that a finding of contempt is not required to invoke §508(b). In that case, a former husband was held in contempt for non-payment of support, and the wife sought fees. The court stated that while a contempt finding is sufficient to require fees, “such a finding is not necessary” under §508(b). The burden falls on the non-compliant party to prove a compelling excuse for violating the order; absent such proof, fees must be awarded. This reflects the First District’s broader view that any unexcused non-compliance – even if not formally labeled contemptuous – warrants a fee award to the aggrieved party under §508(b).

• In re Marriage of Patel, 2013 IL App (1st) 112571:

  Patel is a First District case illustrating §508(b) applied to egregious post-decree litigation misconduct. There, the ex-wife engaged in a pattern of obstructive and bad-faith tactics: she willfully failed to comply with discovery, “reluctant to produce” court-ordered documents, violated court orders, and even leveled unfounded abuse allegations against her ex-husband (which were proven false). The trial court found her actions lacked any justification and ordered her to contribute over $160,000 toward the husband’s attorney fees. The First District affirmed, emphasizing that “[n]othing in section 508(b) requires a finding that the violations were intentional.” Even unintentional yet unjustified violations can trigger fees. The appellate court recounted extensive evidence of the wife’s “dilatory conduct” and lack of cooperation, and agreed that she “lacked both a compelling reason and justification for her conduct.” Because she offered no valid excuse for flouting court orders and inflating the cost of litigation, the fee award was mandatory. The First District concluded it was not an abuse of discretion to make her pay her ex-husband’s attorney’s fees under §508(b). Patel thus demonstrates that discovery abuse, baseless accusations, and other bad-faith tactics in divorce litigation will result in an award of fees against the offending party. As the court noted, the wife’s claim that she “tried her best to comply” was belied by the record – she had cycled through multiple lawyers and ignored deadlines, thereby incurring needless fees.

In re Marriage of Galati, 2021 IL App (3d) 200361 (Third District case, cited for persuasive value) – Galati involved post-decree enforcement where the ex-wife repeatedly failed to obey the divorce judgment (missing payments, neglecting a court-ordered insurance obligation, etc.) and stonewalled discovery. She was held in contempt for various violations. The trial court awarded the ex-husband over $22,000 in attorney fees under §508(b). In affirming, the appellate court highlighted that §508(b) fees are not limited to the exact contempt findings – any failure to comply without cause can justify fees for related proceedings. The court explicitly invoked the “improper purpose” clause: it noted that the wife’s “reluctance or delay in complying with the court’s orders and [husband’s] discovery requests increased the cost of the proceedings and required [him] to seek assistance from the court.” This conduct fell under “improper purpose” as defined by §508(b) (i.e. needless increase in litigation costs). All fees incurred to compel her compliance were therefore chargeable to her. The Galati opinion echoed that a party is “entitled to have [the opposing party] pay for her conduct” when that conduct forces emergency motions and court intervention. Although Galati is a Third District decision, its reasoning aligns with First District precedent and §508(b)’s plain language: harassing delays or noncompliance will boomerang back as fee awards to the injured spouse.

In re Marriage of Berto, 344 Ill. App. 3d 705 (2d Dist. 2003) (Second District, frequently cited by First District courts) – Berto involved an ex-husband who unilaterally reduced his support payments and then tried to voluntarily dismiss his modification petition once arrearages piled up. The trial court declined to hold him in contempt after he paid the overdue support, but still denied the ex-wife’s fee request. The appellate court reversed, stressing that contempt is not a prerequisite for §508(b) fees. “No finding of contempt is required” to impose fees under the statute. What matters is that the violation of the court’s order was “without compelling cause or justification.” The Second District noted that “the party that fails to comply with an order bears the burden of proving” a compelling justification – a burden the ex-husband in Berto did not meet. Accordingly, the ex-wife was entitled to all reasonable enforcement-related fees despite the absence of a contempt finding. First District decisions have cited Berto with approval on this point (for example, Harrison and Patel both reiterate that intentionality or contempt is not required). The takeaway is that a spouse who forces an unnecessary enforcement proceeding—even if they belatedly comply under pressure—must reimburse the other party’s fees under §508(b).

Frivolous or Vexatious Post-Decree Filings

Illinois courts also use §508(b) to curb meritless post-decree motions designed to harass or delay. The statute’s “improper purpose” clause has been applied to award fees when a party pursues baseless litigation tactics in bad faith. For instance, courts have upheld fee awards where a party sought a modification with no compelling grounds—effectively a frivolous motion that wasted everyone’s time and money. In one case, an ex-husband petitioned to reduce maintenance based on an “intentional manipulation of assets” (he orchestrated his finances to create a false pretext for reduction); the court found the petition was brought without cause and “needlessly increas[ed] the cost of litigation,” warranting fees under §508(b). Likewise, in In re Marriage of Santi (Ill. App. 2022), fees were affirmed against a spouse whose serial post-decree motions lacked merit – the court deemed the filings “vexatious and harassing,” triggering §508(b) sanctions (citing Harrison and the “improper purpose” standard). The First District in Harrison itself noted that vexatious custody litigation can justify fee awards when a parent’s actions “constitute harassment.” This dovetails with §508(b)’s broad mandate to penalize any tactic in dissolution proceedings that is intended to burden the other side. As the statute says, when a hearing is brought for an “improper purpose,” the offending party or attorney “shall” pay all parties’ costs for that hearing.

Key Takeaways from the Case Law

• Mandatory Sanctions: Section 508(b) fee awards are essentially mandatory sanctions. Once the court finds a lack of compelling cause for non-compliance or an improper purpose behind a motion/hearing, it must award reasonable attorney’s fees to the innocent party. The trial judge’s discretion at that point extends only to determining the amount of reasonable fees, not whether to award them.
• Harassment and Delay Trigger Fees: Using litigation as a weapon—for example, filing repetitive motions to harass an ex-spouse or refusing to cooperate in discovery to cause delay—will backfire. Courts routinely find that such conduct “needlessly increases the cost of litigation” and thus falls squarely under §508(b). In those cases, all costs of the proceeding may be shifted to the culpable party or their counsel.
• No Financial Hardship Defense: Unlike need-based fee contribution (750 ILCS 5/508(a)), a §508(b) award does not require showing the requesting party’s inability to pay. The wrongdoer’s intent and the effect on litigation costs are the focus. The liable party cannot avoid fees by arguing the other spouse has ample funds or that they themselves cannot afford to pay—those factors are irrelevant. What matters is fault, not finances.
• Contempt Not Required: Courts have explicitly held that a finding of contempt “is sufficient to require an award of fees under section 508(b), but…not necessary.” In Berto and similar cases, fees were awarded even though the trial court stopped short of a contempt finding. The statute creates a rebuttable presumption that failing to obey a discovery order is without cause, and the onus is on the non-compliant party to show a compelling justification.
• Judicial Rebuke of Bad Faith: The tone of these decisions makes clear that Illinois courts frown upon litigants “playing games” post-decree. In Patel, the First District catalogued the wife’s bad-faith litigation tactics; in Galati, the court emphasized that repeated non-compliance forced the opposing side to file multiple motions to obtain basic compliance. Courts do not hesitate to call out an offending party’s “improper purpose” and shift the financial burden accordingly.

Illustrative Excerpts Supporting Fee Awards

• “Section 508(b) is mandatory, not discretionary. If the court finds that a party needlessly increases the cost of litigation, it shall ‘allocate all fees and costs’ of all parties to the party or counsel found to have acted improperly.” (In re Marriage of Gildersleeve, quoting the statute and In re Marriage of Harrison)
• “The party that fails to comply with an order bears the burden of proving that compelling cause or justification for the noncompliance exists…A finding of contempt is sufficient to require an award of fees under section 508(b), but such a finding is not necessary.” (In re Marriage of Berto, In re Marriage of Davis)
• “Improper purposes include, but are not limited to, harassment, unnecessary delay, or other acts needlessly increasing the cost of litigation.” (750 ILCS 5/508(b))
• “Nothing in section 508(b) requires a finding that the violations were intentional. In any event, [the wife’s] arguments are rendered meritless by the evidence in the record… she lacked both a compelling reason and justification for her conduct.” (In re Marriage of Patel, affirming fees against a spouse whose “tardy” compliance and false accusations were deemed frivolous and in bad faith)
• “Christy’s reluctance or delay in complying with the court’s orders and [the] discovery requests increased the cost of the proceedings and required [him] to seek assistance from the court. He is entitled to have Christy pay for her conduct.” (In re Marriage of Galati)
• “Under section 508(b)…the court shall order the party against whom the proceeding is brought to pay promptly the costs and reasonable attorney’s fees of the prevailing party…[i]f non-compliance is with respect to a discovery order, the non-compliance is presumptively without compelling cause or justification.” (Statutory language, 750 ILCS 5/508(b))

Courts apply this with near-automatic force when a party disobeys discovery or other court orders. In Patel, the First District found the ex-wife’s “past dilatory conduct” belied any claim she tried to comply, thus upholding a large fee award. The court was unmoved by her assertion of “technical violations,” noting that lack of intentionality is no defense; “technical or not,” the violations added expense and delay, meeting the “improper purpose” and “no compelling justification” thresholds.

“Section 508(b) does not depend on a party’s inability to pay…it must be reasonable based on…the nature of the case, the difficulty of issues, and the time involved.” (In re Marriage of Gildersleeve) The offending party’s financial status does not diminish liability; the question is whether the fees sought are reasonable for the work performed to counteract the misconduct.

Summary and Conclusion

In summary, Illinois Supreme Court and First District authority establish that frivolous post-decree litigation, discovery abuses, and other bad-faith tactics will prompt a fee award under 750 ILCS 5/508(b). Courts interpret this provision as a powerful tool to compensate the victim of improper litigation conduct and to deter would-be abusers. Whether it’s a baseless motion filed to harass an ex-spouse or a willful discovery violation causing unnecessary delay, Illinois courts have consistently enforced §508(b)’s directive by awarding attorney’s fees to the injured party in such circumstances. The case law is replete with examples of judges not only granting fees, but also explicitly calling out the offending party’s “improper purpose”—be it hostility, delay, or provocation—to justify shifting the financial burden. As the First District summed up, “Section 508(b) is mandatory” once the threshold showing is made, ensuring that those who litigate in bad faith ultimately bear the costs of their own improper conduct rather than foisting that expense onto the innocent opponent.

Sources

• 750 ILCS 5/508(b) (fee-shifting for enforcement proceedings and hearings brought for improper purposes) (statute text).
• In re Marriage of Harrison, 388 Ill. App. 3d 115, 120 (1st Dist. 2009)
• In re Marriage of Davis, 292 Ill. App. 3d 802, 811 (1st Dist. 1997)
• In re Marriage of Patel, 2013 IL App (1st) 112571
• In re Marriage of Galati, 2021 IL App (3d) 200361
• In re Marriage of Berto, 344 Ill. App. 3d 705 (2d Dist. 2003)
• Blum v. Koster, 235 Ill. 2d 21, 36, 45–47 (Ill. 2009)
• In re Marriage of Schneider, 214 Ill. 2d 152, 173–75 (Ill. 2005)

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