Saturday, March 24, 2012

Overview of Divorce and Family Law Appeals

If you cannot live with the results of your Divorce or your Family Law Case, you can appeal the court’s decision to a higher court. However, as a lawyer will warn you, the process can be very slow and expensive; but ultimately, if making an effort to overturn an injustice is important to you, you can and should move forward with your appeal- after speaking with an attorney about your options and grounds for filing.

It’s important to understand what a court of appeals can and cannot do. It cannot reverse the trial court’s decision just because you think the judge was wrong. It can reverse the decision only if the judge made an error in applying case or statutory law or refused to allow testimony or evidence from being admitted when it would have changed the court’s decision. An appeal may be granted if you have discovered significant new information that you couldn’t have discovered at the time of trial.
If you are appealing the settlement of a divorce decree, you may be required to show fraud, misconduct, or mistake in the negotiation, or a showing of fundamental inequity or unfairness in the agreement.

As one could imagine, appeals are extremely complex.   When you speak to your attorney about your appeal, be sure to ask whether or not you have solid grounds for an appeal.  Your counsel should be able to tell you their opinion of your Final Judgment, and whether or not the Trial Court erred in making its ruling.   Trial Court Judges have broad discretion in many areas- its important to understand the basis for your appeal prior to incurring the expense and stress of reopening the case and waiting on a ruling.

The following is a brief overview of the appeal process:

Notice of Appeal
Generally, you have from 30 days from the date of the entry of the final divorce decree or judgment to file a notice of appeal. The notice of appeal informs the court, the opposing party, and the court reporter that you will be filing an appeal and on what grounds.

Pay Filing Fees
Currently, you should be prepared to make a cost deposit in the amount of $400.00.

Order Transcripts
If available, the transcripts should be filed with the appellate court.  Transcripts are the verbatim record of all of the testimony from the trial court. You must pay the court reporter to transcribe the trial proceedings. The cost to produce the transcripts may range from $1,500 to $3,000 for an average divorce case.  A lack of transcripts-if there was not a court reporter present at the Hearing, does not prohibit you from filing an appeal in a family law matter.

Prepare Briefs
A brief is a document containing a legal argument, supported by references to applicable case law and statutes. The appealing party will argue that the trial judge incorrectly applied the law in making a decision. The opposing party will argue that the trial court’s decision was correct. The briefs are usually due within a period of time (often 45 days) after the court reporter submits the trial transcripts.

Oral Argument
If a party to an appeal wants to present oral arguments, then he or she must file a request for oral argument. Each party is allowed a certain amount of time to argue and answer the judges’ questions, usually 20 or 30 minutes.

4 comments:

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  2. I live in Texas and you have to wait 30 days before you can remarry.....can the divorce be appealed during this time if we still want to be married?

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