“I may not be able to pay my attorney as I’m running out of money. Will my attorney work for me if I can’t afford to pay?”
There isn’t a simple answer to this question, as it depends on your lawyer and on the facts of the case. With respect to your lawyer, some attorneys will insist on being paid as the case progresses and will not continue their representation unless they are paid. Other attorneys will allow the bills to accumulate without payment and agree to wait until the end of the case. This will happen only where you will have money at the end of the case to make payment. Typically, the money will come from an asset awarded to you such as a bank account or stock, a retirement account, or proceeds from the sale of the marital home. If this isn’t possible, it’s unlikely that the attorney will continue to work for you.
As far as the facts of the case are concerned, in some situations your attorney can apply to the court while the case is pending for an order requiring that his or her fees be paid by your spouse. For this to happen, it must be demonstrated to the court that your spouse’s finances are better than yours. Specifically, you must prove that you have an inability to pay your lawyer fees, and that your spouse has an ability to do so. If your spouse earns considerably more than you do, or has accounts that can be accessed, the court will generally order him or her to pay your lawyer fees. Your lawyer can apply to the court periodically for your spouse to pay your fees.
If there is just no way for your lawyer to be paid, he or she will withdraw from the case as your attorney of record. He of she must file a motion with the court to do this. Generally, the court will allow the withdrawal. You will still have to pay the lawyer what you owe him or her, although the amount might be reduced at a court hearing. When the lawyer withdraws from the case, he or she must give you back your papers and copies of the court documents. You can represent yourself at this point (not a good idea) or hire another attorney. There are legal clinics and other organizations with sliding scale fee arrangements, which are available if you have little or no money.
Jay A. Frank is a senior divorce practitioner with Aronberg Goldgehn Davis & Garmisa in Chicago. He has been selected as one of the top family-law attorneys in Illinois. With more than 35 years of experience, he focuses his practice on all aspects of Illinois family law. He can be reached at (312) 828-9600. View his Divorce Magazine profile