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Appealing or Modifying Your Final Divorce Decree

Unhappy about 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 and expensive.

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:

  1. The judge abused his/her discretion, or made a ruling that was purely erroneous as to a matter of law, fact, or procedure.
  2. 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 an appeal:

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 the following:

  • 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.

A "reversal" 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 court.

Essential Things To Remember:

  1. Appellate law - like marriage and divorce laws - differs from state to state.
  2. Most states you can appeal only if the judge made an error of law or abused his or her discretion.
  3. You cannot appeal a witness's credibility or a factual determination made by the judge--unless plain error was involved.
  4. 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.
  5. 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.