how your divorce case was resolved
and you simply cannot live with the
results of your trial, or how that
result was memorialized in your final
divorce decree? You can appeal the
court's decision, as a matter of right,
but expect the process to be slow
When you file an
appeal you are claiming that the higher
appellate court should "reverse"
or overturn the lower (trial) court's
decision in your divorce case. The
law generally favors the finality
of judgments, therefore, relief from
a final judgement or decree of divorce
is usually NOT available absent exceptional
and compelling circumstances. Some
courts find that while they are without
legal authority to modify a final
decree, they can interpret a final
decree in a more fair way by modifying
terms of payment, or whatever equity
requires under the circumstances.
What to consider
before filing a divorce appeal:
Because issues are
more complicated and technical than
at the trial level, it is important
for you to consult a lawyer. You may
actually need a different lawyer for
your appeal. An appellate attorney
is an attorney who is familiar with
the appeals process. Be prepared to
pay for the new attorney to come up
to speed on your case because any
lawyer representing you at the appellate
level must know the intricacies of
your case and that means poring over
your "record below" and
knowing it as well as you do.
The process might
last a year or two and sometimes even
longer. On top of paying your own
legal fees you may be required to
pay any fees and legal expenses of
your former spouse if the court thinks
your appeal was frivolous.
What you can appeal?
The common criteria,
or "grounds" in appealing
divorce decisions pertain to the division
of assets or the equitable distribution
of the marital property, are the following:
- The judge abused his/her discretion,
or made a ruling that was purely
erroneous as to a matter of law,
fact, or procedure.
- Most states require a showing
of fraud, misconduct or mistake
in the negotiation, or a showing
of fundamental inequity or unfairness
in an agreement/decree, before
a court can even consider setting
aside the final judgement of divorce.
When and how to file
Generally, you have
from 30 to 45 days, from the date
of the entry of the final divorce
decree or judgement to file a document
called a notice of appeal.
Although the specific
procedure varies from state to state,
the notice of appeal typically requires
- You must inform the trial court,
the adversary (your ex-spouse),
as well as the court reporter,
that an appeal will be filed.
- You will be required to describe
the issues you will appeal and
explain the reasons you believe
the trial court was wrong in deciding
the case the way it did.
- In many states, you will need
to request, and pay a fee for,
your trial transcripts (the verbatim
record of what transpired in the
trial court). This trial transcript
will accompany the notice of appeal.
Just as a complaint/petition for
divorce requires the payment of
a filing fee to the trial court
to obtain a docket number, so
too does the filing of an appeal.
Usually, the appellate legal briefs
will be due within a period of
time (35 to 45 days) after you
receive the trial transcripts
from the court reporter.
- Your appeal is comprised of
what is called a "record
below" which is: all stenographic
transcripts of the proceedings
in the lower court (the trial
court); all evidence admitted
in the case; all papers, pleadings
and documents filed in the lower
(trial) and appellate court in
reference to your divorce. This
appeal, typed by a paralegal or
attorney who you pay, must be
meticulously typed and organized,
complete with an appendix, numbered
pages, index, paginated and bound.
- You must also file these appellate
documents in groups; generally
an original and four copies with
the appellate court, two copies
to each adversary, one copy to
the trial court, and a copy each
for your attorney and, you, the
client. (A total of eight copies
of documents that can be hundreds
of pages long plus the original!)
Although an appellate legal brief
is usually limited, depending
upon the individual state, to
75 pages or so, the record below
is as big as it is! Consequently
the copy costs incurred in the
appellate process are often huge!
After all the paperwork
has been reviewed, typed, copied and
distributed to all it is now in the
hands of the appellate court. The
appellate court, usually made up of
3 judges, reviews your appeal and
all of its supporting documents. Unlike
the trial court, they do not consider
new evidence or hear testimony of
the parties or witnesses. The appellate
arguments are also not recorded.
If you win....
If, after reviewing
your matter, the appellate court believes
your appeal merits relief, it will
afford you, the appellant (the litigant
filing the appeal), another bite at
the apple by ordering a reversal and,
usually, a remand of the trial court's
opinion, as reflected in your final
divorce decree or judgment.
is exactly what it sounds like, an
appellate ruling overturning a trial
rulings in a given matter. A "remand"
is a directive from the appellate
court to the trial court to do it
again in conformance with whatever
directives the appellate court communicates
in its appellate opinion.
If you don't win...
If the appellate
court finds your appeal had no merit,
it will affirm the final judgment/decree
of divorce based upon the trial court's
rulings and decision. If that occurs,
you are usually out of options. Although,
another, even higher, level of appellate
review (after the intermediate appellate
court) exists. Thus, it is possible,
but unlikely, that your case can be
reviewed by the highest appellate
tribunal in the jurisdiction, often
called the state's "Supreme Court."
In general, it is extremely uncommon
to obtain a review of an appellate
opinion from the higher appellate
- Appellate law - like marriage
and divorce laws - differs from
state to state.
- Most states you can appeal only
if the judge made an error of
law or abused his or her discretion.
- You cannot appeal a witness's
credibility or a factual determination
made by the judge--unless plain
error was involved.
- If an issue wasn't raised in
the trial, you can't appeal it
unless an attempt to raise it
was refused and an objection to
that decision entered.
- Often appeals courts do find
errors but decide the judge in
the divorce case would have reached
the same decision some other way
and the errors were "harmless"
in a legal sense.
Words to know:
Motion - a written
request for a new trial or rehearing
on a particular issue. Sometimes the
trial court will accept such a request,
particularly if fraud, coercion or
duress was involved or if important
information has surfaced that you
could not have known about at the
time of the trial. This is usually
a faster and much less expensive way
to make changes.
Modification - a
change in the settlement order or
judgement based on a new set of circumstances.
You may find it harder to modify an
agreement made through settlement
rather than through a court order,
particularly if it involves property
division or alimony. Custody and child
support are easier to modify. If you
waived alimony at the time of the
trial, you may not be able to get
it later through modification even
if you can prove need.
Pendente lite - Temporary
appeal orders allowed by some states.
These usually are more limited, because
the court believes a final hearing
will correct any problems.