The well-established principle that the amount of attorney fees rests in the sound discretion of the trial judge, and will not be interfered with unless abused, applies to support awards. The allowance of attorney fees in a divorce proceeding is not automatic, but depends on a showing that one spouse is financially unable to pay the fees, while the other is able to do so. The decisions whether to grant periodic alimony, attorney fees, and suit money rest in the sound discretion of the circuit court. The matter of fixing attorney fees is one of the few areas in which a trial judge may rely on the pleadings, affidavits on file and on his own experience. Former section 15 of the Divorce Act authorized the trial court to order the payment of such attorney fees as may seem equitable, regardless of the disposition of the case. The awarding of attorney fees rests in the sound discretion of the trial court and will not be interfered with unless such discretion is clearly abused.

Ability to Pay

In General The trial court did not err in requiring ex-wife to pay a majority of her attorney fees. For purposes of determining an award of attorney fees, financial inability exists where the forced payment of available funds would strip a person of his or her means of support and undermine his or her economic stability. The party seeking attorney fees must show an inability to pay, and the ability of the other spouse to pay fees. Before one spouse may recover attorney fees from the other, the spouse seeking fees must demonstrate that he or she is financially unable to pay and that the other spouse has the ability to pay; a mere showing that the other spouse has a greater ability to pay attorney fees is not sufficient to justify an award of fees under this section.

Former Law

Under former Rev.Stat., ch. 40, para. 16 in order to justify allowance of attorney's fees in a divorce case, the party seeking the relief needed to show financial inability to pay and the ability of the other spouse to do so; however, financial inability was not synonymous with destitution for the income and assets of both parties were considered, and if use of the available funds of the party seeking the attorney's fees would strip the person of the means of his support and undermine his economic stability, financial inability to pay such fees was shown.

It must be shown that the party seeking this relief is financially unable to pay and that the party seeking this relief is financially unable to pay and that the other party is able to do so; however, when a party does not request a hearing on his ability to pay or his opponent's inability to pay, the right to such a hearing is waived and the court may base its decision on the financial conditions of the parties as shown by the record.

Installment Order

Few can afford the expenses of divorce without incurring debt, which must be paid by someone; a party who does not have the present ability to pay his own attorney fees can nevertheless be ordered to pay his own attorney, although enforcement might have to be accomplished by an installment order.

Not Shown

Even though respondent had greater earning capacity he could not pay the bulk of petitioner's attorney's fees and continue to pay his own monthly expenses and attorney fees.

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