Taking Action

Get Answers Start Your Divorce Stop Your Divorce Divorce Forms Online Support DivorceDesk

Divorce Tools

Online Divorce Online Negotiation Custody Tracker Custody Evaluation QDRO Preparation Divorce Calendar SEE ALL

Info Categories

Contemplating Divorce Children & Divorce Divorce, Dollars & Debt Divorce Laws Divorce Process Divorce Negotiation SEE ALL

State Resources

California Florida Illinois New York Texas SEE ALL

More Information

Articles Checklists Research Center Cases of Interest Dictionary Encyclopedia Encyclopedia (pop-up) Blogs

For Professionals

Generate Clients Free Network Page Submit Articles Case Management Sign In

The Divorce Encyclopedia
Appeal


Term Definition Appeal - a legal procedure in which the losing or unhappy party of a divorce action requests that a higher court review the decision.
Application in Divorce Appeals are normally based on a trial court’s findings of fact and conclusions of law. Appeals courts review a lower court’s decision and judgment for substantive errors in the conclusions of the law. Rarely, the lower court’s findings of fact are also reviewed because most findings of fact are difficult to challenge, and appeals courts defer to the wisdom of the trial courts.

The term decision is the judge’s "findings in fact" and "conclusions of law," which forms the factual and legal basis for its judgment. Judges have great latitude in making decisions. Errors in conclusions of law are the basis of appeals. Mere unhappiness with a court’s decision and judgment, the appearance that a property division is not equal, the belief that a judgment is not somehow "fair" -- all are often not good reasons to appeal.

In divorce actions, successful appeals are the exception unless the lower court made substantive errors in the conclusions of law. Appeals courts do not second guess a lower court’s findings of fact. Except for substantial errors of law that significantly and adversely harm a party, appeals are unsuccessful because a mistake is considered a harmless error.

According to one source, gender may be more important in determining the success of an appeal of a divorce case: In Massachusetts, 80 percent of the appeals brought by husbands failed and 80 percent of the appeals by wives prevailed.

Appeals are very expensive, and the decision to launch an appeal requires careful consideration. In general, the appealability of an equitable property distribution may turn on a number of considerations.

These include a bifurcated divorce, the failure to distribute all property and waivers. In bifurcated actions -- where the divorce and property settlement are separate proceedings -- the divorce decree is appealable, but an order to reserve judgment on economic issues is interlocutory and, therefore, not appealable. Indeed, a denial to bifurcate the action is not appealable. A failure to distribute all property may be grounds for an appeal. In general, a party who accepts the benefits of a judgment waives the right of appeal.

Many states hold by rule that a party who accepts the benefits of a judgment loses the right of appeal. This rule is intended to prevent a situation where an appeals court would find that the appellant is not entitled to what he or she has already received. Courts reason that is "inconsistent for a spouse to attack a judgment while enjoying its fruits"; that "[t]he acceptance of a judgment benefits operates as a waiver of the right of appeal"; and that "[t]he payment of a judgment moots the dispute."

Some courts, however, permit appeals even when a spouse has accepted the benefits of the judgment. These exceptions to the general rule include appeals 1) when the amount received is very small, 2) when acceptance was based on financial distress, 3) when there was no prejudice to either spouse, 4) when the only issue is whether the award should be increased, 5) when the acceptance of benefits "is not inconsistent with the basis of the appeal," 6) when "[t]he aspect of the judgment being appealed is independent and separable from the part that was accepted," 7) when the appeal could have no affect on the benefits accepted.

An appeal based on a trivial mistake -- a harmless error -- is probably ill considered.

Appeals courts may simply modify a judgment, "with little or no discussion" of how the modification might affect the fairness of the overall distribution, or remand the case back to the trial court for action or retrial.

Other events that may happen during an appeal include the dissipation of assets; changes in law that may overrule prior case law; changes in the value of the marital estate, particularly a marked decline; and the death of a spouse. Each of these may have a bearing on the appeal.

See also Decision and Judgment; Remand.

Add the Divorce Encyclopedia
to Your Website
!


The Research Center

Give Our Research Center a Try. Gain access to the same research material that lawyers often use to establish and win divorce cases. This material consists of legal journal articles and case explanation/analysis documents on a wide range of topics. If you think your situation is unique, your answers will most likely be here. In order to gain access to this area, you must establish an account, but you can search the documents before deciding.


The Divorce Source Difference

Since February 1st, 1997 (when we initially launched Divorcesource.com) we have helped millions of people contemplating or experiencing divorce. The reason we have been able to reach so many people is because we have made it a priority to listen to our customers. We have built a trust by listening and delivering what the customer needs, rather than what we think they want. This is the Divorce Source difference.


Social

Easily Connect With a Lawyer or Mediator
Have Divorce Professionals from Your Area Contact You!
Enter Your Zip Code:

Custody Scheduling and Tracking

Easily Connect With a Lawyer or Mediator
Have Divorce Professionals from Your Area Contact You!
Enter Your Zip Code:

 

Start Your Divorce File for Divorce

 

Settle Your Divorce Negotiate Your Divorce

 

Track Child Custody Track Custody & Visitation

Discounted Divorce Books
Guarantee Official PayPal Seal Facebook Twitter Versign Secure Site
Limited Offer Women's Rights Manual For Divorce
Cover Price: $55.95
Your Price: $29.95
You Save: $26.00

"The Absolute Best Investment in Your Divorce"

Men's Rights Manual For Divorce
Cover Price: $55.95
Your Price: $29.95
You Save: $26.00

"Uncover Your Options and Unleash Solutions"