After a divorce becomes final whether through settlement agreement or after a court decision either spouse may still have an opportunity to challenge certain decisions made by the court. One or both spouses can seek to appeal or modify their divorce decree.
Appealing Your Divorce Judgment
Once the divorce is completed and a judgment entered, either or both spouses can appeal a trial court judge’s decision to a higher (“appellate” or “appeals”) court. Because of the deference given to the original judge, it is unusual, but not impossible, for an appeals court to overturn a judge’s decision in a divorce case. Settlement agreements usually cannot be overturned on appeal if both spouses agreed to the terms of the settlement, unless there were problems with how the agreement was reached or other enforceability issues.
Notice of Appeal
An appeal is limited to some significant error that occurred during trial. If you believe there was an error of fact or law or an abuse of discretion by the judge, then the appellate process begins with a notice of appeal to the other side. There are strict procedures and deadlines about filing and serving such a notice. Failure to follow your state and county procedures could result in losing your right to an appeal.
The Record on Appeal
Once the notice of appeal has been filed with the court and served on all parties, the Record on Appeal must be prepared. The Record consists of the court reporter’s trial transcript and the clerk’s record. The clerk’s record is all of the documents, papers, pleadings, and other written material that were filed with the court, plus any exhibits and documents that were introduced at trial. The court reporter’s transcript is a typewritten booklet that contains everything that was said in court in the presence of a court reporter. Typically, all of the testimony by witnesses, attorney arguments, and statements by the judge or parties.
The Appellate Brief
The main form of argument on appeal is the written appellate “brief,” filed by counsel for each party. A brief is a document containing a legal argument, supported with reference to applicable case law, statutes, the reporter’s transcript, and documents in the clerk’s record. The lawyers for the parties submit their briefs to the appeals court and they may be granted the opportunity to make oral arguments.
If an oral argument is granted, it will typically be for no more than 15 or 30 minutes for each side to present its argument. No witnesses will be presented and no new evidence will be considered.
The Appellate Decision
Once the appellate court has the Record on Appeal, the Appellate Brief, and has taken any oral argument that it desires, it will make a ruling. The time varies from state to state, but thirty to sixty days after the court has a complete record is typical for a decision to be reached. The appellate decision most likely will uphold the trial court’s decision. However, if they don’t do so, the case will be sent back to the trial court to either modify the decision or to conduct a new trial.
Valid Grounds for Appealing a Divorce Decree
There are many reasons to contest a divorce, although not all are legally valid. The most common claim for appealing a divorce decree is that the court made some sort of mistake regarding the law in the final judgment. The party filing the appeal must show that the judge made an error or mistake in applying or interpreting the law regarding the circumstances of the case.
Generally speaking, a party cannot simply challenge facts that were already established over the course of the original proceeding. If the facts have been established at the lower court, the appellate court will accept those as the facts of the case, unless something about those facts reflects the mistake that the court made when applying the law.
An example of this would be if the court concluded that one spouse’s income was $50,000 a year. This fact could not be contested on appeal, unless it can be proven that the court applied the wrong legal standard for calculating income. If the fact is the result of the wrong legal standard being applied, then this could be possibly challenged on appeal.
Other common grounds that could support an appeal of the divorce decree might include:
• Instances of fraud committed by the opposing party in connection with the court proceedings;
• Hidden assets or concealment of other important information by the other party; and
• Discovery of new facts that could not otherwise be discovered during the original proceedings.
While these are all legitimate instances in which an appeal might stand, the appeal is most likely to be successful if it is based on an error in law committed by the court. It is important to note that there are numerous different circumstances in which one party may seek to modify a divorce decree.
For example, in the case of spousal support, when the party receiving spousal support gets remarried or gains employment, the party paying the support may seek to modify the spousal support order contained in the final decree.
How a Divorce Appeal Works
Appealing your divorce is not a second shot at the divorce trial. You are not allowed to present new evidence such as witnesses or documents—to the court of appeals. Instead, the court will consider only the record of evidence that was presented to the trial court and the legal arguments you and your appeals attorney make. If you failed to present evidence at the trial in the lower court, you will not be able to present it to the appeals court.
Here’s a breakdown of the steps normally involved in appealing a divorce:
1. Decide What to Appeal
Before heading to court, you will need to decide whether to appeal all or part of your divorce judgment. Most of the time, you can’t use an appeal to reverse the entire divorce—rather, you would use an appeal to challenge certain terms of the divorce. For example, you might want to appeal only the part of the divorce decree dealing with property division, or maybe you want to appeal both property division and alimony (spousal support).
Overturning a trial judge’s decision doesn’t come easily: Courts generally grant appeals only when you can demonstrate that the trial court
• abused its discretion, for example by obviously ignoring evidence, or
• made a legal error, for example by misapplying or misinterpreting the law.
Because the law gives trial judges a lot of discretion in evaluating and deciding cases, appellate courts are reluctant to overturn a trial court’s decision unless it’s clearly wrong—they will not overturn a decision just because it seems unfair.
You might also be successful in your appeal if you can show that
• you’ve uncovered new facts that you couldn’t have known about or discovered during the divorce proceedings
• your ex-spouse lied about something, or
• your ex-spouse hid assets or income.
Most of the time, it’s not enough to show that you didn’t know about some fact or asset during the divorce proceedings. You must also show that had the trial court known of it, it would have had a “material” effect on the outcome—in other words, that the outcome probably would’ve been different. For example, if you find out after the divorce decree is entered that your ex-spouse lied about having an affair, this fact (although maddening) probably wouldn’t have had an effect on the judge’s decision—especially if your divorce was “no fault.” If the court of appeals agrees that the new fact is material, it might remand your case so the trial court can consider the new information (see discussion below).
For most people, consulting with an attorney before filing a divorce appeal is well worth the effort: If you do not have legal grounds (reason) for your appeal, you will waste a lot of time, money, and effort. A lawyer who specializes in divorce can give you an honest evaluation of your case and chances of success in an appeal.
2. File a Notice of Appeal
To officially begin your appeal, you will need to file a “notice of appeal.” The notice of appeal lets the courts, your ex-spouse, and any lawyers involved know that you’re appealing. Many states require you to file the notice of appeal in both the trial court and the court of appeals.
Most appeals courts have very firm deadlines by which you must file your notice of appeal. Often, these deadlines are short—for example, your court might require you to file a notice of appeal within 30 days of when the judge signed your divorce decree. After filing the notice, you will need to serve copies of it on your ex-spouse (or your ex’s lawyers, if any). If you don’t follow the procedural rules, the court might dismiss your appeal and not allow you to refile.
3. Prepare the Record
The next step in the appeal process is for you and your lawyer to prepare the “record of appeal.” This usually includes the:
• Trial transcript. The trial transcript is a word-for-word written version of what was said during the divorce trial. You will need to pay for a copy of the transcript, which can be expensive.
• Case record. The case record includes all of your divorce case documents, like pleadings (documents you filed with the court) and exhibits (evidence such as documents and photographs produced at trial or attached to pleadings).
You can’t include any new evidence in the record of appeal that you had access to or knew of at trial but did not present to the trial court.
4. Draft and File the Appellate Brief
Perhaps the most labor-intensive aspect of a divorce appeal is creating the appellate brief. A “brief” is a written document that lays out the writer’s legal arguments and support for the arguments. Every court of appeals has its own detailed instructions on how to format appellate briefs. For example, many courts require briefs to be written in large, double-spaced font, and include an appendix so the court can refer to the different sections of the brief.
Most also require you to attach copies of any laws and court cases cited. Drafting appellate briefs is so complex that many attorneys won’t write them—rather, they will refer clients out to attorneys who specialize in appeals and appellate brief writing. Both spouses must submit a brief to the court. After the briefs are submitted, the court will either notify the parties of a date for oral arguments or issue a decision.
5. Attend the Oral Argument
In most state courts of appeal, a panel of judges (usually three) decides the outcome of each case. Many courts of appeals offer the opportunity for the parties to orally present their arguments to the panel of judges in a process called “oral argument.” Some courts schedule all appeals cases for oral argument. Others schedule oral argument only when a party requests it or when the judges believe it would be helpful in making their decision. If you think that you would like to have an oral argument, make sure you find out the process for securing a time and date.
The court usually caps the amount of time for each party’s oral argument at 15 minutes or less. The court might allow the parties to reserve a portion of their time to respond to the other side’s argument, and judges often ask the participants questions. The whole process usually takes less than an hour. After the parties finish their oral arguments, the judges close the hearing and take the case under advisement—meaning they will not issue an immediate decision.
6. Receive the Court’s Decision
In general, appellate courts issue their decisions anywhere from 30 to 90 days after the conclusion of oral arguments. The court’s decision will do one of the following:
• Affirm the trial court’s order. A decision affirming the trial court means that the appeal was unsuccessful and the trial court’s order remains binding as written.
• Reverse the trial court’s order. When an appeals court reverses the trial court’s order, the appeal has been successful. The appeals court’s decision will specify what will happen next—for example, whether the case is remanded to the trial court or a new or modified order is entered.
• Remand the case to the trial court. To “remand” the case means that the appeals court wants the trial court to reconsider the case. Most often, when an appellate court reverses the trial court’s decision, it remands the case with instructions for how the trial court should decide the matter.
• Modify the trial court’s order. In cases where the appeals court believes the trial court made an error, the appeals court might issue an amended judgment of divorce or otherwise modify the trial court’s order so that it is in keeping with the law.
Most appeals courts send their decisions electronically—either you or your attorney (along with your ex-spouse’s attorney) will receive a notification to log on to the court’s filing system to read the decision. Review it carefully to see if you need to take further action.
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