Bill Text: IL SB0065 | 2009-2010 | 96th General Assembly | Enrolled

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Bill Title: Amends the Illinois Marriage and Dissolution of Marriage Act. Provides that a proceeding related to interim attorney's fees and costs in a pre-judgment dissolution proceeding (instead of interim attorney's fees) shall be nonevidentiary and summary in nature (instead of nonevidentiary, summary in nature, and expeditious). Provides that all hearings concerning interim attorney's fees and costs shall be scheduled expeditiously by the court. Provides that in dividing marital property, the court shall consider all relevant factors including each party's contribution to the marital or non-marital property including (i) any decrease in value attributable to an advance from the marital estate or (ii) the contribution of the spouse as a homemaker or to the family (instead of the contribution of the spouse as a homemaker or to the family). Provides that interim attorney's fees and costs may be awarded from the opposing party in a pre-judgment dissolution proceeding under the interim fees and costs provisions and in any other proceeding for attorney's fees and costs (instead of under the Code's interim fees and costs provisions). Provides that all petitions for or relating to interim fees and costs shall include an affidavit stating the factual basis for the requested relief and shall be expeditiously scheduled for hearing by the court. Provides that Code provisions concerning contribution to fees and costs apply to petitions for interim fees. Provides that deadlines for the filing of a praecipe or a petition for setting final fees and costs shall be tolled under specified conditions relating to an appeal or a post judgment motion. Makes other changes.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2009-08-18 - Public Act . . . . . . . . . 96-0583 [SB0065 Detail]

Download: Illinois-2009-SB0065-Enrolled.html

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AN ACT concerning civil law.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Illinois Marriage and Dissolution of
Marriage Act is amended by changing Sections 501, 503, and 508
as follows:
(750 ILCS 5/501) (from Ch. 40, par. 501)
Sec. 501. Temporary Relief.) In all proceedings under this
Act, temporary relief shall be as follows:
(a) Either party may move for:
(1) temporary maintenance or temporary support of a
child of the marriage entitled to support, accompanied by
an affidavit as to the factual basis for the relief
requested;
(2) a temporary restraining order or preliminary
injunction, accompanied by affidavit showing a factual
basis for any of the following relief:
(i) restraining any person from transferring,
encumbering, concealing or otherwise disposing of any
property except in the usual course of business or for
the necessities of life, and, if so restrained,
requiring him to notify the moving party and his
attorney of any proposed extraordinary expenditures

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made after the order is issued;
(ii) enjoining a party from removing a child from
the jurisdiction of the court;
(iii) enjoining a party from striking or
interfering with the personal liberty of the other
party or of any child; or
(iv) providing other injunctive relief proper in
the circumstances; or
(3) other appropriate temporary relief.
(b) The court may issue a temporary restraining order
without requiring notice to the other party only if it finds,
on the basis of the moving affidavit or other evidence, that
irreparable injury will result to the moving party if no order
is issued until the time for responding has elapsed.
(c) A response hereunder may be filed within 21 days after
service of notice of motion or at the time specified in the
temporary restraining order.
(c-1) As used in this subsection (c-1), "interim attorney's
fees and costs" means attorney's fees and costs assessed from
time to time while a case is pending, in favor of the
petitioning party's current counsel, for reasonable fees and
costs either already incurred or to be incurred, and "interim
award" means an award of interim attorney's fees and costs.
Interim awards shall be governed by the following:
(1) Except for good cause shown, a proceeding for (or
relating to) interim attorney's fees and costs in a

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pre-judgment dissolution proceeding shall be
nonevidentiary, and summary in nature, and expeditious.
All hearings for or relating to interim attorney's fees and
costs under this subsection shall be scheduled
expeditiously by the court. When a party files a petition
for interim attorney's fees and costs supported by one or
more affidavits that delineate relevant factors, the court
(or a hearing officer) shall assess an interim award after
affording the opposing party a reasonable opportunity to
file a responsive pleading. A responsive pleading shall set
out the amount of each retainer or other payment or
payments, or both, previously paid to the responding
party's counsel by or on behalf of the responding party. In
assessing an interim award, the court shall consider all
relevant factors, as presented, that appear reasonable and
necessary, including to the extent applicable:
(A) the income and property of each party,
including alleged marital property within the sole
control of one party and alleged non-marital property
within access to a party;
(B) the needs of each party;
(C) the realistic earning capacity of each party;
(D) any impairment to present earning capacity of
either party, including age and physical and emotional
health;
(E) the standard of living established during the

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marriage;
(F) the degree of complexity of the issues,
including custody, valuation or division (or both) of
closely held businesses, and tax planning, as well as
reasonable needs for expert investigations or expert
witnesses, or both;
(G) each party's access to relevant information;
(H) the amount of the payment or payments made or
reasonably expected to be made to the attorney for the
other party; and
(I) any other factor that the court expressly finds
to be just and equitable.
(2) Any assessment of an interim award (including one
pursuant to an agreed order) shall be without prejudice to
any final allocation and without prejudice as to any claim
or right of either party or any counsel of record at the
time of the award. Any such claim or right may be presented
by the appropriate party or counsel at a hearing on
contribution under subsection (j) of Section 503 or a
hearing on counsel's fees under subsection (c) of Section
508. Unless otherwise ordered by the court at the final
hearing between the parties or in a hearing under
subsection (j) of Section 503 or subsection (c) of Section
508, interim awards, as well as the aggregate of all other
payments by each party to counsel and related payments to
third parties, shall be deemed to have been advances from

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the parties' marital estate. Any portion of any interim
award constituting an overpayment shall be remitted back to
the appropriate party or parties, or, alternatively, to
successor counsel, as the court determines and directs,
after notice.
(3) In any proceeding under this subsection (c-1), the
court (or hearing officer) shall assess an interim award
against an opposing party in an amount necessary to enable
the petitioning party to participate adequately in the
litigation, upon findings that the party from whom
attorney's fees and costs are sought has the financial
ability to pay reasonable amounts and that the party
seeking attorney's fees and costs lacks sufficient access
to assets or income to pay reasonable amounts. In
determining an award, the court shall consider whether
adequate participation in the litigation requires
expenditure of more fees and costs for a party that is not
in control of assets or relevant information. 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. If the court finds that both
parties lack financial ability or access to assets or
income for reasonable attorney's fees and costs, the court
(or hearing officer) shall enter an order that allocates
available funds for each party's counsel, including
retainers or interim payments, or both, previously paid, in

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a manner that achieves substantial parity between the
parties.
(4) The changes to this Section 501 made by this
amendatory Act of 1996 apply to cases pending on or after
June 1, 1997, except as otherwise provided in Section 508.
(d) A temporary order entered under this Section:
(1) does not prejudice the rights of the parties or the
child which are to be adjudicated at subsequent hearings in
the proceeding;
(2) may be revoked or modified before final judgment,
on a showing by affidavit and upon hearing; and
(3) terminates when the final judgment is entered or
when the petition for dissolution of marriage or legal
separation or declaration of invalidity of marriage is
dismissed.
(Source: P.A. 89-712, eff. 6-1-97.)
(750 ILCS 5/503) (from Ch. 40, par. 503)
Sec. 503. Disposition of property.
(a) For purposes of this Act, "marital property" means all
property acquired by either spouse subsequent to the marriage,
except the following, which is known as "non-marital property":
(1) property acquired by gift, legacy or descent;
(2) property acquired in exchange for property
acquired before the marriage or in exchange for property
acquired by gift, legacy or descent;

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(3) property acquired by a spouse after a judgment of
legal separation;
(4) property excluded by valid agreement of the
parties;
(5) any judgment or property obtained by judgment
awarded to a spouse from the other spouse;
(6) property acquired before the marriage;
(7) the increase in value of property acquired by a
method listed in paragraphs (1) through (6) of this
subsection, irrespective of whether the increase results
from a contribution of marital property, non-marital
property, the personal effort of a spouse, or otherwise,
subject to the right of reimbursement provided in
subsection (c) of this Section; and
(8) income from property acquired by a method listed in
paragraphs (1) through (7) of this subsection if the income
is not attributable to the personal effort of a spouse.
(b)(1) For purposes of distribution of property pursuant to
this Section, all property acquired by either spouse after the
marriage and before a judgment of dissolution of marriage or
declaration of invalidity of marriage, including non-marital
property transferred into some form of co-ownership between the
spouses, is presumed to be marital property, regardless of
whether title is held individually or by the spouses in some
form of co-ownership such as joint tenancy, tenancy in common,
tenancy by the entirety, or community property. The presumption

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of marital property is overcome by a showing that the property
was acquired by a method listed in subsection (a) of this
Section.
(2) For purposes of distribution of property pursuant to
this Section, all pension benefits (including pension benefits
under the Illinois Pension Code) acquired by either spouse
after the marriage and before a judgment of dissolution of
marriage or declaration of invalidity of the marriage are
presumed to be marital property, regardless of which spouse
participates in the pension plan. The presumption that these
pension benefits are marital property is overcome by a showing
that the pension benefits were acquired by a method listed in
subsection (a) of this Section. The right to a division of
pension benefits in just proportions under this Section is
enforceable under Section 1-119 of the Illinois Pension Code.
The value of pension benefits in a retirement system
subject to the Illinois Pension Code shall be determined in
accordance with the valuation procedures established by the
retirement system.
The recognition of pension benefits as marital property and
the division of those benefits pursuant to a Qualified Illinois
Domestic Relations Order shall not be deemed to be a
diminishment, alienation, or impairment of those benefits. The
division of pension benefits is an allocation of property in
which each spouse has a species of common ownership.
(3) For purposes of distribution of property under this

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Section, all stock options granted to either spouse after the
marriage and before a judgment of dissolution of marriage or
declaration of invalidity of marriage, whether vested or
non-vested or whether their value is ascertainable, are
presumed to be marital property. This presumption of marital
property is overcome by a showing that the stock options were
acquired by a method listed in subsection (a) of this Section.
The court shall allocate stock options between the parties at
the time of the judgment of dissolution of marriage or
declaration of invalidity of marriage recognizing that the
value of the stock options may not be then determinable and
that the actual division of the options may not occur until a
future date. In making the allocation between the parties, the
court shall consider, in addition to the factors set forth in
subsection (d) of this Section, the following:
(i) All circumstances underlying the grant of the stock
option including but not limited to whether the grant was
for past, present, or future efforts, or any combination
thereof.
(ii) The length of time from the grant of the option to
the time the option is exercisable.
(c) Commingled marital and non-marital property shall be
treated in the following manner, unless otherwise agreed by the
spouses:
(1) When marital and non-marital property are
commingled by contributing one estate of property into

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another resulting in a loss of identity of the contributed
property, the classification of the contributed property
is transmuted to the estate receiving the contribution,
subject to the provisions of paragraph (2) of this
subsection; provided that if marital and non-marital
property are commingled into newly acquired property
resulting in a loss of identity of the contributing
estates, the commingled property shall be deemed
transmuted to marital property, subject to the provisions
of paragraph (2) of this subsection.
(2) When one estate of property makes a contribution to
another estate of property, or when a spouse contributes
personal effort to non-marital property, the contributing
estate shall be reimbursed from the estate receiving the
contribution notwithstanding any transmutation; provided,
that no such reimbursement shall be made with respect to a
contribution which is not retraceable by clear and
convincing evidence, or was a gift, or, in the case of a
contribution of personal effort of a spouse to non-marital
property, unless the effort is significant and results in
substantial appreciation of the non-marital property.
Personal effort of a spouse shall be deemed a contribution
by the marital estate. The court may provide for
reimbursement out of the marital property to be divided or
by imposing a lien against the non-marital property which
received the contribution.

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(d) In a proceeding for dissolution of marriage or
declaration of invalidity of marriage, or in a proceeding for
disposition of property following dissolution of marriage by a
court which lacked personal jurisdiction over the absent spouse
or lacked jurisdiction to dispose of the property, the court
shall assign each spouse's non-marital property to that spouse.
It also shall divide the marital property without regard to
marital misconduct in just proportions considering all
relevant factors, including:
(1) the contribution of each party to the acquisition,
preservation, or increase or decrease in value of the
marital or non-marital property, including (i) any such
decrease attributable to a payment deemed to have been an
advance from the parties' marital estate under subsection
(c-1)(2) of Section 501 and (ii) the contribution of a
spouse as a homemaker or to the family unit;
(2) the dissipation by each party of the marital or
non-marital property;
(3) the value of the property assigned to each spouse;
(4) the duration of the marriage;
(5) the relevant economic circumstances of each spouse
when the division of property is to become effective,
including the desirability of awarding the family home, or
the right to live therein for reasonable periods, to the
spouse having custody of the children;
(6) any obligations and rights arising from a prior

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marriage of either party;
(7) any antenuptial agreement of the parties;
(8) the age, health, station, occupation, amount and
sources of income, vocational skills, employability,
estate, liabilities, and needs of each of the parties;
(9) the custodial provisions for any children;
(10) whether the apportionment is in lieu of or in
addition to maintenance;
(11) the reasonable opportunity of each spouse for
future acquisition of capital assets and income; and
(12) the tax consequences of the property division upon
the respective economic circumstances of the parties.
(e) Each spouse has a species of common ownership in the
marital property which vests at the time dissolution
proceedings are commenced and continues only during the
pendency of the action. Any such interest in marital property
shall not encumber that property so as to restrict its
transfer, assignment or conveyance by the title holder unless
such title holder is specifically enjoined from making such
transfer, assignment or conveyance.
(f) In a proceeding for dissolution of marriage or
declaration of invalidity of marriage or in a proceeding for
disposition of property following dissolution of marriage by a
court that lacked personal jurisdiction over the absent spouse
or lacked jurisdiction to dispose of the property, the court,
in determining the value of the marital and non-marital

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property for purposes of dividing the property, shall value the
property as of the date of trial or some other date as close to
the date of trial as is practicable.
(g) The court if necessary to protect and promote the best
interests of the children may set aside a portion of the
jointly or separately held estates of the parties in a separate
fund or trust for the support, maintenance, education, physical
and mental health, and general welfare of any minor, dependent,
or incompetent child of the parties. In making a determination
under this subsection, the court may consider, among other
things, the conviction of a party of any of the offenses set
forth in Section 12-3.3, 12-4, 12-4.1, 12-4.2, 12-4.3, 12-13,
12-14, 12-14.1, 12-15, or 12-16 of the Criminal Code of 1961 if
the victim is a child of one or both of the parties, and there
is a need for, and cost of, care, healing and counseling for
the child who is the victim of the crime.
(h) Unless specifically directed by a reviewing court, or
upon good cause shown, the court shall not on remand consider
any increase or decrease in the value of any "marital" or
"non-marital" property occurring since the assessment of such
property at the original trial or hearing, but shall use only
that assessment made at the original trial or hearing.
(i) The court may make such judgments affecting the marital
property as may be just and may enforce such judgments by
ordering a sale of marital property, with proceeds therefrom to
be applied as determined by the court.

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(j) After proofs have closed in the final hearing on all
other issues between the parties (or in conjunction with the
final hearing, if all parties so stipulate) and before judgment
is entered, a party's petition for contribution to fees and
costs incurred in the proceeding shall be heard and decided, in
accordance with the following provisions:
(1) A petition for contribution, if not filed before
the final hearing on other issues between the parties,
shall be filed no later than 30 days after the closing of
proofs in the final hearing or within such other period as
the court orders.
(2) Any award of contribution to one party from the
other party shall be based on the criteria for division of
marital property under this Section 503 and, if maintenance
has been awarded, on the criteria for an award of
maintenance under Section 504.
(3) The filing of a petition for contribution shall not
be deemed to constitute a waiver of the attorney-client
privilege between the petitioning party and current or
former counsel; and such a waiver shall not constitute a
prerequisite to a hearing for contribution. If either
party's presentation on contribution, however, includes
evidence within the scope of the attorney-client
privilege, the disclosure or disclosures shall be narrowly
construed and shall not be deemed by the court to
constitute a general waiver of the privilege as to matters

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beyond the scope of the presentation.
(4) No finding on which a contribution award is based
or denied shall be asserted against counsel or former
counsel for purposes of any hearing under subsection (c) or
(e) of Section 508.
(5) A contribution award (payable to either the
petitioning party or the party's counsel, or jointly, as
the court determines) may be in the form of either a set
dollar amount or a percentage of fees and costs (or a
portion of fees and costs) to be subsequently agreed upon
by the petitioning party and counsel or, alternatively,
thereafter determined in a hearing pursuant to subsection
(c) of Section 508 or previously or thereafter determined
in an independent proceeding under subsection (e) of
Section 508.
(6) The changes to this Section 503 made by this
amendatory Act of 1996 apply to cases pending on or after
June 1, 1997, except as otherwise provided in Section 508.
(Source: P.A. 95-374, eff. 1-1-08.)
(750 ILCS 5/508) (from Ch. 40, par. 508)
Sec. 508. Attorney's Fees; Client's Rights and
Responsibilities Respecting Fees and Costs.
(a) 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

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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 a pre-judgment dissolution proceeding in accordance
with subsection (c-1) of Section 501 and in any other
proceeding under this subsection. At the conclusion of any
pre-judgment dissolution proceeding under this subsection the
case, contribution to attorney's fees and costs may be awarded
from the opposing party in accordance with subsection (j) of
Section 503 and in any other proceeding under this subsection.
Fees and costs may be awarded in any proceeding to counsel from
a former client in accordance with subsection (c) of this
Section. Awards may be made in connection with the following:
(1) The maintenance or defense of any proceeding under
this Act.
(2) The enforcement or modification of any order or
judgment under this Act.
(3) The defense of an appeal of any order or judgment
under this Act, including the defense of appeals of
post-judgment orders.
(3.1) The prosecution of any claim on appeal (if the
prosecuting party has substantially prevailed).
(4) The maintenance or defense of a petition brought
under Section 2-1401 of the Code of Civil Procedure seeking
relief from a final order or judgment under this Act.
(5) The costs and legal services of an attorney
rendered in preparation of the commencement of the

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proceeding brought under this Act.
(6) Ancillary litigation incident to, or reasonably
connected with, a proceeding under this Act.
All petitions for or relating to interim fees and costs
under this subsection shall be accompanied by an affidavit as
to the factual basis for the relief requested and all hearings
relative to any such petition shall be scheduled expeditiously
by the court. All provisions for contribution under this
subsection shall also be subject to paragraphs (3), (4), and
(5) of subsection (j) of Section 503.
The court may order that the award of attorney's fees and
costs (including an interim or contribution award) shall be
paid directly to the attorney, who may enforce the order in his
or her name, or that it shall be paid to the appropriate party.
Judgment may be entered and enforcement had accordingly. Except
as otherwise provided in subdivision (e)(1) of this Section,
subsection (c) of this Section is exclusive as to the right of
any counsel (or former counsel) of record to petition a court
for an award and judgment for final fees and costs during the
pendency of a proceeding under this Act.
(b) In every proceeding for the enforcement of an order or
judgment when the court finds that the failure to comply with
the order or judgment was without compelling cause or
justification, 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. If non-compliance is

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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. If at any time a court finds that a hearing under
this Act Section 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 include, but are not limited to,
harassment, unnecessary delay, or other acts needlessly
increasing the cost of litigation.
(c) Final hearings for attorney's fees and costs against an
attorney's own client, pursuant to a Petition for Setting Final
Fees and Costs of either a counsel or a client, shall be
governed by the following:
(1) No petition of a counsel of record may be filed
against a client unless the filing counsel previously has
been granted leave to withdraw as counsel of record or has
filed a motion for leave to withdraw as counsel. On receipt
of a petition of a client under this subsection (c), the
counsel of record shall promptly file a motion for leave to
withdraw as counsel. If the client and the counsel of
record agree, however, a hearing on the motion for leave to
withdraw as counsel filed pursuant to this subdivision
(c)(1) may be deferred until completion of any alternative
dispute resolution procedure under subdivision (c)(4). As
to any Petition for Setting Final Fees and Costs against a

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client or counsel over whom the court has not obtained
jurisdiction, a separate summons shall issue. Whenever a
separate summons is not required, original notice as to a
Petition for Setting Final Fees and Costs may be given, and
documents served, in accordance with Illinois Supreme
Court Rules 11 and 12.
(2) No final hearing under this subsection (c) is
permitted unless: (i) the counsel and the client had
entered into a written engagement agreement at the time the
client retained the counsel (or reasonably soon
thereafter) and the agreement meets the requirements of
subsection (f); (ii) the written engagement agreement is
attached to an affidavit of counsel that is filed with the
petition or with the counsel's response to a client's
petition; (iii) judgment in any contribution hearing on
behalf of the client has been entered or the right to a
contribution hearing under subsection (j) of Section 503
has been waived; (iv) the counsel has withdrawn as counsel
of record; and (v) the petition seeks adjudication of all
unresolved claims for fees and costs between the counsel
and the client. Irrespective of a Petition for Setting
Final Fees and Costs being heard in conjunction with an
original proceeding under this Act, the relief requested
under a Petition for Setting Final Fees and Costs
constitutes a distinct cause of action. A pending but
undetermined Petition for Setting Final Fees and Costs

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shall not affect appealability of any judgment or other
adjudication in the original proceeding.
(3) The determination of reasonable attorney's fees
and costs either under this subsection (c), whether
initiated by a counsel or a client, or in an independent
proceeding for services within the scope of subdivisions
(1) through (5) of subsection (a), is within the sound
discretion of the trial court. The court shall first
consider the written engagement agreement and, if the court
finds that the former client and the filing counsel,
pursuant to their written engagement agreement, entered
into a contract which meets applicable requirements of
court rules and addresses all material terms, then the
contract shall be enforceable in accordance with its terms,
subject to the further requirements of this subdivision
(c)(3). Before ordering enforcement, however, the court
shall consider the performance pursuant to the contract.
Any amount awarded by the court must be found to be fair
compensation for the services, pursuant to the contract,
that the court finds were reasonable and necessary. Quantum
meruit principles shall govern any award for legal services
performed that is not based on the terms of the written
engagement agreement (except that, if a court expressly
finds in a particular case that aggregate billings to a
client were unconscionably excessive, the court in its
discretion may reduce the award otherwise determined

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appropriate or deny fees altogether).
(4) No final hearing under this subsection (c) is
permitted unless any controversy over fees and costs (that
is not otherwise subject to some form of alternative
dispute resolution) has first been submitted to mediation,
arbitration, or any other court approved alternative
dispute resolution procedure, except as follows:
(A) In any circuit court for a single county with a
population in excess of 1,000,000, the requirement of
the controversy being submitted to an alternative
dispute resolution procedure is mandatory unless the
client and the counsel both affirmatively opt out of
such procedures; or
(B) In any other circuit court, the requirement of
the controversy being submitted to an alternative
dispute resolution procedure is mandatory only if
neither the client nor the counsel affirmatively opts
out of such procedures.
After completion of any such procedure (or after one or
both sides has opted out of such procedures), if the
dispute is unresolved, any pending motion for leave to
withdraw as counsel shall be promptly granted and a final
hearing under this subsection (c) shall be expeditiously
set and completed.
(5) A petition (or a praecipe for fee hearing without
the petition) shall be filed no later than the end of the

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period in which it is permissible to file a motion pursuant
to Section 2-1203 of the Code of Civil Procedure. A
praecipe for fee hearing shall be dismissed if a Petition
for Setting Final Fees and Costs is not filed within 60
days after the filing of the praecipe. A counsel who
becomes a party by filing a Petition for Setting Final Fees
and Costs, or as a result of the client filing a Petition
for Setting Final Fees and Costs, shall not be entitled to
exercise the right to a substitution of a judge without
cause under subdivision (a)(2) of Section 2-1001 of the
Code of Civil Procedure. Each of the foregoing deadlines
for the filing of a praecipe or a petition shall be:
(A) tolled if a motion is filed under Section 2-1203 of
the Code of Civil Procedure, in which instance a petition
(or a praecipe) shall be filed no later than 30 days
following disposition of all Section 2-1203 motions; or
(B) tolled if a notice of appeal is filed, in which
instance a petition (or praecipe) shall be filed no later
than 30 days following the date jurisdiction on the issue
appealed is returned to the trial court.
If a praecipe has been timely filed, then by timely filed
written stipulation between counsel and client (or former
client), the deadline for the filing of a petition may be
extended for a period of up to one year.
(d) A consent judgment, in favor of a current counsel of
record against his or her own client for a specific amount in a

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marital settlement agreement, dissolution judgment, or any
other instrument involving the other litigant, is prohibited. A
consent judgment between client and counsel, however, is
permissible if it is entered pursuant to a verified petition
for entry of consent judgment, supported by an affidavit of the
counsel of record that includes the counsel's representation
that the client has been provided incorporates an itemization
of the billing or billings to the client, detailing hourly
costs, time spent, and tasks performed, and by an affidavit of
the client acknowledging receipt of that documentation,
awareness of the right to a hearing, the right to be
represented by counsel (other than counsel to whom the consent
judgment is in favor), and the right to be present at the time
of presentation of the petition, and agreement to the terms of
the judgment. The petition may be filed at any time during
which it is permissible for counsel of record to file a
petition (or a praecipe) for a final fee hearing, except that
no such petition for entry of consent judgment may be filed
before adjudication (or waiver) of the client's right to
contribution under subsection (j) of Section 503 or filed after
the filing of a petition (or a praecipe) by counsel of record
for a fee hearing under subsection (c) if the petition (or
praecipe) remains pending. No consent security arrangement
between a client and a counsel of record, pursuant to which
assets of a client are collateralized to secure payment of
legal fees or costs, is permissible unless approved in advance

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by the court as being reasonable under the circumstances.
(e) Counsel may pursue an award and judgment against a
former client for legal fees and costs in an independent
proceeding in the following circumstances:
(1) While a case under this Act is still pending, a
former counsel may pursue such an award and judgment at any
time subsequent to 90 days after the entry of an order
granting counsel leave to withdraw; and
(2) After the close of the period during which a
petition (or praecipe) may be filed under subdivision
(c)(5), if no such petition (or praecipe) for the counsel
remains pending, any counsel or former counsel may pursue
such an award and judgment in an independent proceeding.
In an independent proceeding, the prior applicability of this
Section shall in no way be deemed to have diminished any other
right of any counsel (or former counsel) to pursue an award and
judgment for legal fees and costs on the basis of remedies that
may otherwise exist under applicable law; and the limitations
period for breach of contract shall apply. In an independent
proceeding under subdivision (e)(1) in which the former counsel
had represented a former client in a dissolution case that is
still pending, the former client may bring in his or her spouse
as a third-party defendant, provided on or before the final
date for filing a petition (or praecipe) under subsection (c),
the party files an appropriate third-party complaint under
Section 2-406 of the Code of Civil Procedure. In any such case,

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any judgment later obtained by the former counsel shall be
against both spouses or ex-spouses, jointly and severally
(except that, if a hearing under subsection (j) of Section 503
has already been concluded and the court hearing the
contribution issue has imposed a percentage allocation between
the parties as to fees and costs otherwise being adjudicated in
the independent proceeding, the allocation shall be applied
without deviation by the court in the independent proceeding
and a separate judgment shall be entered against each spouse
for the appropriate amount). After the period for the
commencement of a proceeding under subsection (c), the
provisions of this Section (other than the standard set forth
in subdivision (c)(3) and the terms respecting consent security
arrangements in subsection (d) of this Section 508) shall be
inapplicable.
The changes made by this amendatory Act of the 94th General
Assembly are declarative of existing law.
(f) Unless the Supreme Court by rule addresses the matters
set out in this subsection (f), a written engagement agreement
within the scope of subdivision (c)(2) shall have appended to
it verbatim the following Statement:
"STATEMENT OF CLIENT'S RIGHTS AND RESPONSIBILITIES
(1) WRITTEN ENGAGEMENT AGREEMENT. The written engagement
agreement, prepared by the counsel, shall clearly address the
objectives of representation and detail the fee arrangement,

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including all material terms. If fees are to be based on
criteria apart from, or in addition to, hourly rates, such
criteria (e.g., unique time demands and/or utilization of
unique expertise) shall be delineated. The client shall receive
a copy of the written engagement agreement and any additional
clarification requested and is advised not to sign any such
agreement which the client finds to be unsatisfactory or does
not understand.
(2) REPRESENTATION. Representation will commence upon the
signing of the written engagement agreement. The counsel will
provide competent representation, which requires legal
knowledge, skill, thoroughness and preparation to handle those
matters set forth in the written engagement agreement. Once
employed, the counsel will act with reasonable diligence and
promptness, as well as use his best efforts on behalf of the
client, but he cannot guarantee results. The counsel will abide
by the client's decision concerning the objectives of
representation, including whether or not to accept an offer of
settlement, and will endeavor to explain any matter to the
extent reasonably necessary to permit the client to make
informed decisions regarding representation. During the course
of representation and afterwards, the counsel may not use or
reveal a client's confidence or secrets, except as required or
permitted by law.
(3) COMMUNICATION. The counsel will keep the client
reasonably informed about the status of representation and will

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promptly respond to reasonable requests for information,
including any reasonable request for an estimate respecting
future costs of the representation or an appropriate portion of
it. The client shall be truthful in all discussions with the
counsel and provide all information or documentation required
to enable the counsel to provide competent representation.
During representation, the client is entitled to receive all
pleadings and substantive documents prepared on behalf of the
client and every document received from any other counsel of
record. At the end of the representation and on written request
from the client, the counsel will return to the client all
original documents and exhibits. In the event that the counsel
withdraws from representation, or is discharged by the client,
the counsel will turn over to the substituting counsel (or, if
no substitutions, to the client) all original documents and
exhibits together with complete copies of all pleadings and
discovery within thirty (30) days of the counsel's withdrawal
or discharge.
(4) ETHICAL CONDUCT. The counsel cannot be required to
engage in conduct which is illegal, unethical, or fraudulent.
In matters involving minor children, the counsel may refuse to
engage in conduct which, in the counsel's professional
judgment, would be contrary to the best interest of the
client's minor child or children. A counsel who cannot
ethically abide by his client's directions shall be allowed to
withdraw from representation.

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(5) FEES. The counsel's fee for services may not be
contingent upon the securing of a dissolution of marriage, upon
obtaining custody, or be based upon the amount of maintenance,
child support, or property settlement received, except as
specifically permitted under Supreme Court rules. The counsel
may not require a non-refundable retainer fee, but must remit
back any overpayment at the end of the representation. The
counsel may enter into a consensual security arrangement with
the client whereby assets of the client are pledged to secure
payment of legal fees or costs, but only if the counsel first
obtains approval of the Court. The counsel will prepare and
provide the client with an itemized billing statement detailing
hourly rates (and/or other criteria), time spent, tasks
performed, and costs incurred on a regular basis, at least
quarterly. The client should review each billing statement
promptly and address any objection or error in a timely manner.
The client will not be billed for time spent to explain or
correct a billing statement. If an appropriately detailed
written estimate is submitted to a client as to future costs
for a counsel's representation or a portion of the contemplated
services (i.e., relative to specific steps recommended by the
counsel in the estimate) and, without objection from the
client, the counsel then performs the contemplated services,
all such services are presumptively reasonable and necessary,
as well as to be deemed pursuant to the client's direction. In
an appropriate case, the client may pursue contribution to his

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or her fees and costs from the other party.
(6) DISPUTES. The counsel-client relationship is regulated
by the Illinois Rules of Professional Conduct (Article VIII of
the Illinois Supreme Court Rules), and any dispute shall be
reviewed under the terms of such Rules."
(g) The changes to this Section 508 made by this amendatory
Act of 1996 apply to cases pending on or after June 1, 1997,
except as follows:
(1) Subdivisions (c)(1) and (c)(2) of this Section 508,
as well as provisions of subdivision (c)(3) of this Section
508 pertaining to written engagement agreements, apply
only to cases filed on or after June 1, 1997.
(2) The following do not apply in the case of a hearing
under this Section that began before June 1, 1997:
(A) Subsection (c-1) of Section 501.
(B) Subsection (j) of Section 503.
(C) The changes to this Section 508 made by this
amendatory Act of 1996 pertaining to the final setting
of fees.
(Source: P.A. 94-1016, eff. 7-7-06.)