Appealing a Divorce Judgment
Key Points
  • Appealing a divorce is never easy. It is a second chance to have the court overturn the existing outcome from the original divorce trial. To be successful in a divorce appeal one must often demonstrate that the law was not upheld, a judge abused his or her discretion in decision making, or fraud existed.
  • Divorce appeals can be very expensive and often require hiring a new or additional lawyer, who requires time to become familiar with the case.
  • An appeals decision is more focused on how the courts handled the original case versus considering new evidence and or testimony from new witnesses.

A divorce appeal is the least common and most difficult form of post judgment litigation.

Divorce appeals happen in contested divorce trials when one spouse simply cannot live with results or how that result became memorialized in the final divorce decree. That former spouse, who is called the appellant, argues that the appellant court should reverse or overturn the trial court decision.

Many litigants do not understand that an appeal is not just another time at bat, a second try in hope of a different outcome. Unhappiness with the court’s decision and judgment, the appearance that the property division was not equal, the belief that the judgment is somehow "unfair" - all are not good reasons to appeal.

Successful appeals happen when the appellant demonstrates that the court made an error in the conclusions of law that form the basis for its judgment. As a practical matter this means demonstrating that the judge abused his or her discretion, or made a ruling that was "purely erroneous as to a matter of law, fact or procedure." Some states require a demonstration of fraud, misconduct or a "showing of fundamental inequity or unfairness in an agreement/decree, before a court can even consider setting aside the final judgment of divorce."

"The law generally favors the finality of judgments; therefore, relief from a final judgment or decree of divorce is usually not available absent exceptional and compelling circumstances," according to the Equality in Marriage Institute.

Anyone contemplating appealing a divorce decree should think carefully about the decision before acting. Appeals are expensive. Often they cost as much as if not more than the trial. Issues raised on appeal are often very complicated and technical, and it is very likely that the appellant will need a new lawyer to raise them. Appeals are very expensive because the appellant must pay the new attorney "to come up to speed"; he or she must spend many hours studying the transcript of the trial - the "record below," as it is termed. Not only are appeals expensive, but also the appeal precludes closure and moving on. The process may take a year or so and sometimes even longer. The appellant may also be required to pay the expenses of the appellee - the former spouse.

Generally, the appellant has 30 to 45 days from the date of entry of the divorce decree or judgment to file what is called a notice of appeal.

Appeal procedures vary from one jurisdiction to another; however, the notice of appeal typically means that appellant informs the trial court that the appeal will be filed. The appellant must file a brief explaining the reasons for the appeal. He or she must obtain and pay for a verbatim trial transcript. All the paperwork from the trial - evidence, pleadings, documents - must be included with the appeal. (Some jurisdictions have very exacting protocols about the format of appeals, including an appendix, numbered pages and index), The appellate documents have to be filed in groups: an original and four copies to the appellate court, two copies to each adversary, one copy to the trial court and a copy to each attorney.

A divorce appeal lawyer can easily put in 100 to 200 hours or more preparing for the case at $175 to $500 and hour just preparing for the action, according to one source.

When the appeal is in the hands of the appellate court, it reviews the paperwork and hears arguments. The court, usually three judges, does not consider new evidence or hear testimony from the parties or witnesses. Arguments are not recorded. The court can then reverse the trial court ruling, or remand the case back to the trial court for a new trial in conformance with whatever directives the appellate court communicates in the appellate opinion. Normally, this is not the case. Usually, the appellate court decides to appeal it without merit.

The standards of review for different areas of appeal, such as family law matters, child support or alimony vary.

Appellate courts generally defer to trial courts in terms of the standards of review for findings of fact. However, some strong "appealable" issues include 1) failure to make sufficient findings of fact or conclusions of law; 2) a decision based only on legal conclusions without "...a careful analysis of the law and of the evidence; 3) the award of alimony inconsistent with "...the range of awards that are normally given."

Anyone contemplating an appeal should remember the triangle of divorce litigation. Most divorce actions are settled without a trial. Of those that go to trial, most are not appealed. And most appeals are brushed aside.

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