According to the Illinois Department of Publish Health, there were 29,331 divorces and annulments in the state of Illinois during 2013. Although this appears to be a downward trend, the stress of a divorce takes a toll on both parties. Once the final ruling is handed down, there is a sense of relief that it is over.
In the event that something happens and one of the parties decides to change the final divorce decree, both parties need to hire attorneys to rework the divorce terms. This not only creates stress for a situation that was thought to be resolved, the financial ramifications are another variable that make a difficult exchange more complicated. The Illinois Supreme Court recently ruled on a case to modify a divorce decree. The final decision affects how future divorce decrees are modified and how much financial liability the filing party has for the former spouse’s legal costs.
Modifications to the Divorce Decree for Payments
Divorce decrees can be modified, but each case is different. Any payments that are included in a divorce decree are calculated based on the standard of living that the couple enjoyed while they were together. Any change in circumstance for the spouse making the payments may be a justifiable cause to adjust a divorce decree so that the payments do not become an unnecessary burden.
Typically, a court will consider changes to payments presented by the paying former spouse’s attorney based on a decrease in earnings. It may also be possible to change the divorce judgment based on changes in the lifestyle of the spouse receiving payments. It is common for temporary modifications to be implemented following a layoff or other more common decline in income. However, it is less common for a former spouse to seek a permanent change based on a decrease in earnings.
The recent case was one of the first to reach the Supreme Court for a permanent change based on a permanent reduction in income. One of the primary concerns was the basis for determining how the payment should be modified. If a percentage of the supporting former spouse was provided in the final decree as well as a set monetary amount, the court may decide to choose either of these as the basis for the new payment. Based on the recent ruling, courts will use the monetary amount, not the percentage, to calculate the new payment.
How Attorney Fee Petitions Work
The Illinois Supreme Court determined that the former spouse filing the modification is responsible for paying a portion of the attorney fees for the former spouse who must respond to the modification. The primary reason for this decision was that the plaintiff is potentially subjected to financial hardship as the result of the unexpected legal fees. The Court determined that the requesting party should be partially responsible for paying the plaintiff’s Chicago divorce lawyer.
The Supreme Court based their final decision on the Illinois Marriage and Dissolution of Marriage Act. According to the Act, a spouse can file a petition to have costs, including divorce attorney fees, at least partially covered.
The final determination considers each party’s available financial resources to determine whether fees should be included in the award. Awards as a result of the Act are given under several different types of divorce proceedings:
- Proceedings that request changes or required enforcement of court order (applicable to the case in question)
- Defense or maintenance of a motion to stay a proceeding
- The defense or prosecution of appeals
- Additionally, related litigation that is connected to the divorce proceeding
An affidavit is required to obtain an award.
Dealing with Divorce Modifications
Moving to change a final divorce decree typically is not an easy decision. It can be time consuming and expensive, which is why divorce modification cases are not common. However, the recent decision by the Supreme Court has implications for all other divorce modifications going forward. The ruling was based on updates made to the Act that went into effect at the beginning of 2016. It has helped to give courts a direction when faced with similar cases.
Modifications to a divorce decree for custody, visitation, and child support are treated differently than payments. The rulings from the recent Supreme Court Case do not apply to divorce settlement modifications related to raising children.
Changes to a final divorce decree can be difficult to understand because of the number of variables. A Chicago divorce lawyer can help review each case to determine how the recent ruling will affect payments of other similar modification petitions.
For those who have been considered making modifications to existing divorce decrees, there is a lot of information to review to determine the benefits of the modification. Contacting an experienced Chicago divorce lawyer can help determine the right path moving forward.
