Attorney Fee

Attorney Fees

___In General
   Attorney fees may be awarded by the trial court in post-decree proceedings to modify the provisions of a decree.  Horwitz v. Horwitz

___Allocation
   Where husband had additional income each year, in excess of his own living expenses and the maintenance payment he must make, trial court’s order of husband’s financial responsibility for wife’s attorney fees was not an abuse of discretion as her ability to pay was limited.  In re Murphy

___Factors
   Attorney fees can be awarded to a divorced wife in subsequent proceedings to modify the decree under proper circumstances; the allowance of the aforesaid attorney fees depends not upon who initiates the proceeding but rather upon the circumstances peculiar to the individual case.  Mabbatt v. Mabbatt

___Malpractice
   Because subsection (b) of this section, before 1982 amendments, permitted parties to agree to maintenance that would be payable following the remarriage of the recipient, a settlement agreement that included a provision that maintenance payments were not modifiable did not warrant imposition of liability on an attorney based on a breach of the standard of care owed to his client.  Boyer v. Rudman

___Modification
   Where a petition for attorney fees was not filed until after 30 days had elapsed from entry of a marital dissolution judgment, the provision of the judgment relating to attorney fees had become final and could be modified only in accordance with the provisions of (a) of this section, which in turn required the filing of a petition under former section 72 of the Civil Practice Act (now 735 ILCS 5/2-1401) showing not only a meritorious cause of action but also the exercise of due diligence by the moving party.  In re Rifkin

___Time of Award
   Attorney’s fees are not awarded in advance of a post-decree proceeding, but only after a full adjudication on the merits of the petition.  Horwitz v. Horwitz

Award

___Certain and Definite

The provision for the payment of alimony by husband as “one-half of his salary earned and received as a teacher or employee of the public schools of the City of Chicago, Illinois, as long as he is so employed” was held reasonably definite and certain.  Condy v. Condy

___Retroactive
   The trial court did not err in refusing to make the child support award retroactive to September, the date when petitioner’s maintenance payments ceased, as there was no indication in the record that notice of hearing on petitioner’s petition for modification was served in September.  In re Freesen

Back Payments
   Modifications of support are only applicable to payments made after the filing of the modification petition; therefore the trial court’s imposition of back payments was beyond the power granted to it by statute.  In re Boyden

Burden of Proof
   The burden of demonstrating the alleged substantial change in circumstances is on the party seeking relief.  In re Lasota
   The burden of proving fraud or concealment is on the party asserting it, and that burden is more onerous when a party seeks to vacate or modify a property settlement incorporated in a divorce decree, all presumptions being in favor of the validity of the settlement; fraud may consist in the concealment of what is true as in the assertion of what is false,  and the concealment must be in the assertion of what is false, and the concealment must be shown to have been done with the intention to deceive under circumstances creating an opportunity and a duty to speak.  Dendrinos v. Dendrions
   The burden of proof is upon the party seeking relief to show that material changes in circumstances exist as would justify modification.  Elizer v. Elizer
   The burden of demonstrating circumstances warranting modification is on the party seeking the modification.  Graham v. Graham  
The burden of proof is on the petitioner in an action to increase support payments to prove the increased needs to support the child, and also to prove that the defendant has the ability to pay the increased amount needed.  Grinton v. Grinton
   In a proceeding to modify child support the burden of proof is on the petitioner to clearly establish the increased need and corresponding increased ability to pay and the findings, and order of the trial court, on matters of this nature, will not be reversed unless contrary to the manifest weight of the evidence.  Kelleher v. Kelleher
   Where the plaintiff’s petition seeking modification of a divorce decree’s property settlement was based upon the alleged fraud of the respondents, it was incumbent upon plaintiff to establish this charge by clear and convincing evidence.  Wilson v. Wilson
   Although custody provisions can be modified, the party seeking to modify such provisions has the burden of proving altered conditions.  Herth v. Herth
   The burden of proof is upon the applicant to show such material changes in circumstances as would justify modification, and where no evidence of a change in the financial condition of the parties is offered in evidence, the petition must be denied.  Patterson v. Patterson

Back to 750 ILCS 5/510 Home Page