Dissatisfied parties may wish to appeal a final divorce order. Appeals are made to a higher court, usually called an appellate court or a court of appeals, in front of a different judge or judges. Appeals can be expensive and slow, so they may not be the best avenue for all dissatisfied parties. Parties also cannot ignore existing court orders, including the order that they are appealing, while awaiting an appellate ruling. However, if an appeals court rules in the appellant’s favor, it may reverse some or all of the trial judge’s orders or grant the parties a new trial.
The Standard for Appeal
A party cannot appeal a final divorce order simply because they do not like the judge’s ruling. Generally, an appeal must be based on a legal error. This means that the party believes that the judge made a serious mistake in applying the law, and the mistake affected the outcome of the case. For example, the judge may have excluded credible evidence of an asset’s value that subsequently affected the division of property. An appellate court usually may not consider new evidence, but only the evidence contained in the trial court record. Appellate courts also typically defer to the trial judge, so the more discretion assigned to a trial judge regarding an issue, the less likely it is that the appellate court will rule in favor of the appellant.
Depending on state law, a party may also appeal a final divorce order if the other party fraudulently withheld important information, or if the appellant otherwise discovered new, important information that could not have been discovered before trial. An attorney experienced in divorce appeals may be able to give state-specific advice on appealable issues.
A settlement agreement is usually not appealable unless there are serious questions about the process of reaching the agreement or its enforceability.
The Appeal Process
Depending on the state, parties generally have about 30 to 45 days to appeal a trial judge’s ruling. This means that a party and their attorney only have a few weeks to review the case, develop arguments for appeal, and draft the appellate brief.
The appellate brief applies the law, including case law and statutes, to the facts of the case at issue. It will attach supporting documents, such as the trial transcript, and reference that evidence to establish the issue on appeal. Once the brief and all other required documents are filed with the court, the court may schedule an oral argument in which both sides will present their case and answer questions in front of one or more appellate judges. Oral arguments are much shorter than trials and sometimes last less than an hour. Depending on state law, the appellate court may have a month or more to issue its final decision.
The Cost of an Appeal
An appeal may feel like a natural next step after spending a considerable amount of money on trial and trial preparation, but appeals can be expensive. A divorce lawyer must spend additional time forming appellate arguments, drafting the appellate brief, and arguing the case in front of the appellate court. This may substantially increase the hours that the lawyer bills on the case. Some divorce lawyers do not do appellate work and will instead refer their clients to an appellate specialist. In addition to the hours that the specialist will spend drafting and arguing the appeal, they will need more time to become familiar with the case and review the record than a lawyer who personally went through the trial.
An appellant may also be required to spend money on trial transcripts, which may be fairly expensive depending on the length of the trial. Some jurisdictions have formal procedures for how the appeal should be formatted, down to color coding and file tabs. The appellant will also probably need to include all pleadings, motions, briefs, evidence, and other documents with their appeal.
The cost of an appeal, coupled with the lengthy process and its limitations, may not make sense for all individuals dissatisfied with their final divorce order. However, parties who feel that their concerns meet the standard for an appeal should not overlook the option.
Modifications vs. Appeals
A modification is another way to change a divorce order, although its basis is different from an appeal. The general differences between modifications and appeals include:
Generally based on a significant change in circumstances
Can be done any time after the final divorce order