In re Marriage of Earlywine
Annotate this CaseThe underlying divorce proceedings were initiated by the husband in 2010 through his attorney, James, and were complicated because the couple had a three-year-old son. Both parties had debts and neither was able to pay attorney fees, but husband’s family contributed more than $8,000 on his behalf, which was paid to James. When James received the money, husband signed an agreement, designating the sum as an “advance retainer” and the attorney’s property, not placed in a client trust account. Citing the “leveling of the playing field” provisions of the Illinois Marriage and Dissolution of Marriage Act, the trial court entered a “disgorgement” order for James to turn over to wife’s attorney half of the fees paid to him ($4,000). The appellate court and Illinois Supreme Court affirmed. The Marriage Act reflects a policy of giving trial courts discretion to do equity in dissolution proceeding by making interim fee awards where parties lack resources. Case law and ethics rules concerning attorney fees come from a different context and are not pertinent to marriage dissolution. The advance payment retainer argued by James might be appropriate in some circumstances, such as bankruptcy or a forfeiture proceeding.
Court Description:
This dispute over interim attorney fees in a marriage dissolution proceeding comes from Stephenson County. Divorce proceedings were initiated by the husband in 2010 through his attorney, Thomas James, and were complicated by the fact that the couple had a three-year-old son. Both parties had debts and neither had the present ability to pay attorney fees, but the husband’s family contributed over $8,000 on his behalf, which was paid to attorney James.
Pursuant to the “leveling of the playing field” provisions of the Illinois Marriage and Dissolution of Marriage Act, the circuit court entered a “disgorgement” order for the husband’s attorney to turn over to the wife’s attorney half of the fees previously paid to him, or $4,000. The appellate court affirmed, and the supreme court, in this decision, agreed.
When attorney James received the money paid to him, an agreement was signed with the husband, designating that the sums were an “advance retainer” so as to become the attorney’s property at that point, rather than being placed in a client trust account. Attorney James argued that this was pursuant to the Illinois Supreme Court’s opinion in Dowling v. Chicago Options Associates, Inc., 226 Ill. 2d 277 (2007), and attorney disciplinary rules which were enacted pursuant to it. The applicable provision of the marriage statute dates from 1997.
The supreme court said the marriage statute reflects a policy of giving circuit courts discretion to do equity by making interim fee awards where parties in dissolution proceedings lack resources. The court said that the Dowling case and the rules enacted pursuant to it come from a different context and are not pertinent to a marriage dissolution proceeding. For example, the advance payment retainer argued for attorney James might be appropriate in special circumstances, such as bankruptcy or a forfeiture proceeding. Arguments raised by James based on separation of powers and statutory conflict with the rules were rejected.
The results reached in the courts below in this regard were affirmed.
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