Nevada court entered a judgment of dissolution. The agreement had a provision for the prevailing (winning) party to get attorney’s fees paid by the other party.
The parties and their minor children then relocated to Illinois. The Nevada judgment was registered in Illinois. Ex-wife Petitioner was looking for attorney fees from Ex-husband. She had filed petitions to modify child support and visitation.
Illinois has a public policy regarding such provisions for attorney fees. The agreement cannot give attorney fees to the prevailing party in matters related to the best interests of children.
A spouse might earn less money than the other spouse. That first spouse could be looking to litigate child-related issues. But, that spouse might be hesitant to bring a petition that is even in the children’s best interests.
That spouse could fear being unsuccessful and having to pay not only his or her attorney fees, but also the other spouse’s attorney fees. That would be if there is a prevailing party provision.
This, in turn, would make it harder for a court to assess the children’s best interests. Courts have a responsibility to protect the best interests of the children in child-support matters. So, courts are not bound by the parties’ agreements as to child support.
The court made each party responsible for his or her own attorney fees.
The appellate court noted that the law still allows a court to order any party to pay a reasonable amount for his own or the other party’s costs and attorney fees. This is after considering the financial resources of the parties. But, it agreed that each party should pay its own fees in this case.
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