Guarantees to Pay Divorce Attorney Fees by Relatives of Litigant
The First District on December 17, 2017 issued an opinion relating to payment of divorce attorney fees by relatives to the actual litigant who guarantee or outright agree to pay for the divorce litigants fees. Ben Goldwater v. George S. Greenberg and Denise Greenberg, 2017 IL App (1st) 163003. Enforcement of these agreements to pay is difficult especially when the agreement or guarantee is not memorialized by a written and signed agreement between the attorney, the party and the relatives. This recent decision seems to indicate that certain oral agreements could be also enforceable.
In this case, the parents of a divorce litigant agreed with the litigant’s attorney to pay all the fees. There was no written agreement. There were several conversations and from the beginning of the case, the parents paid the litigant’s retainer and thereafter paid the interim bills issued by the lawyer to the parents. Upon the conclusion of the case, there was a certain amount owed and the parents refused to pay.
The attorney filed suit against the parents for payment of fees based on three legal reasons. Plaintiff filed an action for breach of contract. Defendants moved to strike based on a series of defenses, including the affirmative defense that the parents’ alleged promise to pay their son’s legal fees was unenforceable under the Statute of Frauds. The Trial Court agreed, dismissing the complaint. First District reversed in part by stating that the Statue of Frauds did not preclude the attorney’s relief. The Court based its decision on an exception to the Statute of Frauds defense which is the doctrine of complete performance which provides that where one party completely performs a contract, the contract is enforceable and the Statute of Frauds may not be used as a defense to enforcement. The Trial Court also found that the alleged agreement to pay fees was a collateral agreement and not an original one. This issue was remanded by the First District to the Trial Court with a comment that resolution of that question depended upon when the agreement was made and the intent of the parties at the time.
Daniel R. Stefani is a Principal and one of the co-Founders of Katz & Stefani.