Illinois Interim Attorney's Fees Under Section 508(a): A Practitioner's Guide

Illinois courts award interim fees to "level the playing field" when one spouse lacks resources to adequately participate in dissolution proceedings. Under 750 ILCS 5/508(a) and companion provision Section 501(c-1), courts may order the financially advantaged spouse to contribute toward the other's legal fees—but practitioners must demonstrate specific statutory factors, file with proper documentation, and understand that these awards are discretionary and subject to abuse-of-discretion review on appeal.

The critical threshold for fee awards is whether requiring full payment would "undermine the petitioner's financial stability" (In re Marriage of Heroy, 2017 IL 120205). This standard does not require a $0 bank balance—even parties with substantial assets can qualify when payment would strip them of their means of support.

The statutory framework requires summary hearings with mandatory affidavits

Section 508(a) provides the core authority: "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." The key term "from time to time" expressly permits multiple petitions throughout litigation.

Section 501(c-1) governs pre-judgment dissolution proceedings with critical procedural requirements. Interim fee hearings must be non-evidentiary and summary in nature unless good cause exists otherwise—meaning courts decide based on affidavits and arguments alone, without live testimony. Petitions seeking retainer fees must include an attorney affidavit confirming the attorney will enter appearance if relief is granted.

The 1997 "leveling the playing field" amendments (P.A. 89-712) fundamentally restructured Illinois fee practice, establishing that interim awards achieve "substantial parity in parties' access to funds for pre-judgment litigation costs" per 750 ILCS 5/102(5). The 2016 comprehensive rewrite (P.A. 99-0090) reduced the contribution petition deadline to 14 days after closing of proofs and standardized statewide forms.

Section 508(a-5) extends summary procedures to post-judgment cases: "A petition for temporary attorney's fees in a post-judgment case may be heard on a non-evidentiary, summary basis."

Courts apply a two-prong financial analysis focusing on stability, not poverty

The seminal In re Marriage of Heroy (2017 IL 120205) established that a party is "unable to pay" when, after considering all statutory factors, requiring full payment "would undermine his or her financial stability." The Illinois Supreme Court explicitly rejected requiring a $0 balance—in Heroy itself, a party with $2.3 million in assets was found unable to pay when full payment would destabilize her finances.

The petitioner bears the burden of establishing both their own inability to pay AND the other party's ability to pay. This dual requirement originates from In re Marriage of Schneider (214 Ill. 2d 152, 2005), which held that "financial inability exists where requiring payment of fees would strip that party of her means of support or undermine her financial stability."

Courts must evaluate nine statutory factors under Section 501(c-1):

• (A) Income and property of each party, including marital property within sole control of one party and non-marital property within access to a party
• (B) Needs of each party
• (C) Realistic present and future earning capacity
• (D) Impairment to earning capacity (age, physical/emotional health, or absence from job market)
• (E) Standard of living established during the marriage
• (F) Degree of complexity of issues—including custody allocation, business valuation, tax planning, and expert witness needs
• (G) Each party's access to relevant information
• (H) Amount of payments made or reasonably expected to be made to counsel for the other party
• (I) Any other factor the court finds just and equitable

The "leveling" standard creates a near-presumption of parity: "Except for good cause shown, an interim award shall not be less than payments made or reasonably expected to be made to the counsel for the other party."

Three distinct fee mechanisms serve different purposes under the IMDMA

Interim fees under 508(a)/501(c-1) are temporary, need-based awards during pending litigation. They are "strictly temporary in nature, subject to adjustment (including, if necessary, the disgorgement of overpayments to an attorney) at the close of the dissolution proceeding" per In re Marriage of Arjmand (2017 IL App (2d) 160631).

Contribution under Section 503(j) addresses final fee allocation at case conclusion. The petition must be filed within 14 days after closing of proofs.

Advancement/disgorgement under In re Marriage of Earlywine (2013 IL 114779) allows courts to redistribute unearned retainer funds between counsel to achieve parity. However, In re Marriage of Goesel (2017 IL 122046) limited this—earned fees are not subject to disgorgement.

Section 508(b) mandates fees for litigation misconduct regardless of ability to pay

Unlike discretionary 508(a) awards, Section 508(b) fees are mandatory. When a party fails to comply with court orders "without compelling cause or justification," the court "shall order" fee payment. In re Marriage of Budorick (2020 IL App (1st) 190994) confirms: "Awards of attorney's fees made under 750 ILCS 5/508(b) will stand whether the party has the capacity to pay or not."

Discovery abuse creates a presumption against the violator: "If non-compliance is with respect to a discovery order, the non-compliance is presumptively without compelling cause or justification, and the presumption may only be rebutted by clear and convincing evidence."

In re Marriage of Patel (2013 IL App (1st) 112571) affirmed a $160,000 fee award under 508(b), holding that "nothing in section 508(b) requires a finding that the violations were intentional."

Illinois courts calculate reasonable fees using lodestar methodology

Courts apply the lodestar method: reasonable hourly rate multiplied by hours reasonably expended. Per In re Marriage of Hyman (2024 IL App (2d) 230352), reasonableness factors include:

• Nature of the case and novelty/difficulty of issues
• Importance of the matter
• Standing and skill of the attorney
• Degree of responsibility required
• Usual and customary charges for similar work
• Benefit to the client
• Reasonable connection between fees requested and amount in controversy

Hourly rate determination considers the prevailing market rate in the community, attorney experience, case complexity, and professional reputation. Cook County family law rates typically range from $350-$500/hour for experienced practitioners.

Expert fees are recoverable under the statutory framework

Section 501(c-1)(F) explicitly recognizes expert needs as a factor: courts shall consider "reasonable needs for expert investigations or expert witnesses, or both."

Covered expert categories include:

• Forensic accountants for business valuation, income analysis, and hidden asset investigations
• Business valuators for closely held business appraisal
• Custody evaluators under Section 604.10
• Real estate appraisers and vocational experts
• Guardian ad litems under Section 506(b)

Cook County practice requires strict compliance with Rule 13 procedures

Cook County Local Rule 13.3.1 mandates financial affidavits using the Illinois Supreme Court standardized form for any party seeking attorney's fees. Filing deadlines are strict: petitioners must file within 30 days after service of initial pleading, respondents within 30 days after filing appearance, or not less than 7 business days prior to hearing—whichever occurs first.

Critical procedural points for Cook County practitioners:

• Motions must state "with specificity the statute or authority relied upon"
• Petitions must be verified
• Financial affidavits are not filed with the Clerk—only certificate of service is filed
• Response time is 21 days after service of notice of motion
• Pre-judgment interim fee hearings are non-evidentiary and summary

Strategic timing significantly affects petition outcomes

Early filing advantages: The leveling purpose is most effective when financial disparity is greatest. Filing before the monied spouse depletes resources on attorney fees prevents using "relative wealth as a litigation tool."

Critical timing considerations:

• Filing before temporary support hearings ensures adequate representation at critical early stages
• Filing after the opposing party pays a large retainer enables disgorgement arguments under Earlywine
• The 14-day deadline for contribution petitions after closing of proofs is jurisdictional—missing it forfeits final fee claims

Conclusion: Effective 508(a) practice requires documentation, timing, and statutory precision

Successful interim fee petitions combine three elements: comprehensive financial documentation demonstrating disparity, strategic timing relative to discovery posture, and precise statutory compliance. The 2017 Heroy decision liberalized the "inability to pay" standard—practitioners should emphasize financial stability impacts rather than complete inability.

The most powerful argument remains the statutory parity requirement: "Except for good cause shown, an interim award shall not be less than payments made or reasonably expected to be made to the counsel for the other party." Document what the opposing party has paid their attorney, and demand equivalent access to representation.

Written by Jonathan D. Steele

Chicago divorce attorney with cybersecurity certifications (Security+, ISC2 CC, Google Cybersecurity Professional Certificate). Illinois Super Lawyers Rising Star 2016-2025.

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