Appealing a Divorce Case

After the trial, if you, your spouse, or both of you are not happy with the result, either or both of you may appeal. The purpose of an appeal is to determine whether the trial judge made a legal error such as misinterpreting the law or allowing into evidence testimony that should not have been admitted. If the appellate court determines that the trial judge did make a material legal error (that is, one that affected the outcome of the trial), it may send the case back to the same judge (or some other judge in the original judge’s court) with instructions to correct the mistake. The way to correct the mistake is often for the judge to schedule the case for a whole new trial.

An appeal is generally not a vehicle for questioning the trial judge’s factual conclusions. For example: suppose a trial judge concludes that a father is the better of two parents and awards him custody. In order to prevail on appeal, the mother must do more than simply argue to the appellate court that she is in fact the better parent; she must demonstrate that the trial judge reached the wrong conclusion because he or she made a mistake in applying the law during the trial.

Let’s say that the judge in this hypothetical case found that the father was a better parent based on the testimony of six of the father’s friends. Suppose the mother also had six friends she wanted to testify at the trial on her behalf, but the judge would not allow their testimony. Her lawyer objected and told the judge what these witnesses would say if they were allowed to testify, but the judge still would not allow them to testify. On appeal, the mother would argue that the judge erred by not letting her friends testify.

It is very important that her lawyer told the trial judge what these witnesses would say and objected at the trial to the judge’s refusal to let them testify. If the lawyer hadn’t objected, thus giving the judge an opportunity to correct the mistake, the mother would not be able to raise the issue later in the appellate court. Fortunately, the mother’s lawyer in this example "preserved the record & by objecting and offering the substance of the testimony to the court, thus paving the way for a successful appeal."

It is likely that the appellate court would agree that the trial judge should have listened to the mother’s witnesses as well as the father’s and would therefore issue an order vacating (or throwing out) the custody award to the father. In addition, the court would remand, or send back, the case to the trial Judge, with instructions to let the mother’s friends testify. Having won her appeal, now the mother must go through a whole new trial, possibly in front of the same judge. The fact that she won her appeal does not mean that she will be granted custody; it means only that she gets to have a new trial.

The appellate court will generally not second-guess factual conclusions that the trial judge has reached, because the appellate court does not take testimony or hear witnesses. Rather, the appellate court reads and listens to the arguments of the lawyers to determine if the triaI judge made a legal error that affected the outcome of the trial. If so, in most cases the case will be returned to the trial court to have the error corrected.

The appellate process takes approximately one to two years. In contested custody cases, once a case has gone all the way through the appeal process and is sent back for a new trial, the circumstances of the case-such as the ages of the children or the financial situations of the parents may have changed significantly. In such cases, having the case remanded can take as much time and cost as much money as starting from scratch.

After any trial, the losing spouse may use the threat of an appeal as a negotiating tactic to induce the winning spouse to give up all or part of what has been won. For example, let’s say a judge splits up a couple’s assets and gives fifty thousand dollars of the husband’s pension to the wife. The husband can then threaten to appeal unless the wife settles the case by agreeing that he has to give her only forty thousand dollars. Then the wife has to decide whether to pay lawyers to fight the appeal for the next year or simply give up part of the pension and thus put an end to the legal battle.

If the wife refuses to settle and the husband loses his appeal, the wife will still be out the legal expenses of fighting the appeal. Although she may succeed in having the court order the husband to pay her legal expenses, there is no guarantee that this will happen. Moreover, because there is a possibility that the husband might win the appeal, the wife may not be able to get her hands on any of the pension funds while the appeal is pending. Thus being able to get the funds immediately and not having to litigate an appeal may make it worthwhile for the wife to give up the ten thousand dollars.

As you can see from these examples, it is important that your lawyer understands the appellate process, especially in a highly contested case. Your lawyer needs to know enough about appeals to be able to preserve your case for appeal and also to be able to use the threat of appeal to soften the blow of a loss. If you win your case, your lawyer will advise you how to handle the threat of an appeal. Should you give up part of your winnings and settle? Or is your spouse just bluffing? If you choose not to give in, how much would an appeal cost? What are the chances of losing? etc.

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