One type of post-divorce litigation you likely often handle as a family law attorney is when an ex-spouse attempts to lower his or her spousal support payments by means of a petition for modification of the divorce decree. While your CFL Designation for Divorce Practitioners gives you the requisite financial knowledge to value your clients’ assets and those of their spouses, thereby arriving at fair and equitable property divisions and maintenance arrangements, post-divorce circumstances often change for one spouse or the other.

The Supreme Court of Illinois addressed this issue, plus the issue of which spouse pays what portion of attorneys’ fees in such an action, in the 2017 case of In re Marriage of Donna Tuke Heroy and David F. Heroy. In their 2006 divorce, which occurred after 26 years of a lavish lifestyle marriage, the court ordered Mr. Heroy to pay $35,000 permanent monthly maintenance to Ms. Tuke and ordered each party to pay his or her own attorney’s fees.

Post-divorce Trial Court and Appellate Court Litigation

Barely a year later, Mr. Heroy filed for modification and Ms. Tuke counterfiled for contribution to her attorney’s fees in defending this action. The ensuing litigation culminated in the trial court issuing a memorandum opinion in 2012 reducing Mr. Heroy’s maintenance payments to $27,500 per month and ordering him to pay $125,000 of Ms. Tuke’s $345,000 attorney’s fees accumulated during the modification dispute. Heroy appealed and Tuke petitioned the trial court for $100,000 in prospective attorney’s fees to defend against this new action. The trial court granted her $35,000 instead, and Heroy appealed this decision, too.

After several more years of litigation, the appellate court in 2016 ultimately reversed the circuit court’s award of Tuke’s partial attorney’s fees, finding that the record did not indicate that she was unable to pay the full amount thereof. It also remanded to the circuit court with instructions to award monthly maintenance in the amount of $25,745, stating that the trial court had made a calculation error. In addition, it allowed Tuke’s petition for leave to appeal.

Maintenance Awards

With regard to maintenance awards, the Illinois Supreme Court listed factors courts should consider, including the following:

  • Each spouse’s income and property value
  • Each spouse’s present and future earning capacity
  • Each spouse’s needs, including educational needs
  • The marital standard of living
  • The length of the marriage
  • Each spouse’s contribution to the education, training, and career of the other
  • Each spouse’s contribution to both the acquisition and dissipation of the couple’s marital property
  • The standard of living during the marriage
  • Each spouse’s age, health, occupation, etc.
  • The tax consequences of the property division
  • Any other just and equitable consideration

The Court found that the trial court considered all relevant factors and did not abuse its discretion by awarding her $27,500 in monthly support. It therefore reversed that part of the appellate court’s judgment reducing the amount to $25,745 and affirmed the trial court’s $27,500 amount.

Attorney’s Fees Contributions

With regard to one spouse’s contribution to the other’s attorney’s fees, the Illinois Supreme Court found Section 508 of the Illinois Marriage and Dissolution of Marriage Act to be compatible with and complementary to Illinois case law. Consequently, the spouse seeking attorney’s fees contribution need not prove his or her total inability to pay, but rather only the inability to pay a portion thereof, plus the other spouse’s ability to pay these fees.

In discussing legislative intent when enacting Section 508, the Court found that one of the major concerns, as reflected in the legislative debate records, was that one party might “use his or her superior assets to force the other to settle or not contest various issues in dissolution proceedings.” The Court found that the trial court, after careful consideration of all the circumstances, did not abuse its discretion in requiring Heroy to pay a total of $165,000 of Tuke’s various attorney’s fees. It therefore affirmed the circuit court’s judgment in this amount.

While your state’s statutory and case law likely are different from those of Illinois, nevertheless this case offers good insight into the factors associated with both maintenance and attorney’s fee awards.

For more information on financial issues you need to be aware of, how gaining your CFL Designation for Divorce Practitioners will give you the financial knowledge and skills you need to attract additional high-asset clients, and the other benefits of AACFL membership, please visit this page on our site.