Appealing a Divorce Decree
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Who May Appeal a Divorce Decree?
A divorce decree is the final judgment that is issued by the judge in a divorce proceeding. Also called a final order or final judgment, the divorce decree will state important conclusions for issues such as property distribution, child custody and support, and alimony payments.
Any party to the divorce hearing may appeal the decree, so long as it is not prohibited by state statute. It is common also for both parties to file an appeal at the same time.
Further, the party requesting the appeal must have valid grounds on which to base their appeal. The burden of proof is on the party filing for appeal, as courts which usually give preference to the final decree.
In a divorce appeal, the party requesting the appeal is called the “appellant”. The other party which is being appealed against is called the “respondent”. An appeal is different from modifying a divorce decree, which may only change a portion of the ruling.
What are some Valid Grounds that an Appeal of a Divorce Decree can be Based on?
Generally speaking, the most common grounds for appealing a divorce decree are a mistake in law that was committed by the judge or the lower court. The party filing for appeal must usually show that the judge made some sort of error in applying or interpreting the law.
This means that a party usually cannot simply challenge facts which were established during the original proceeding. For example, if the court concluded that the husband’s income was $50,000 a year, this cannot be contested in an appeal. However, if it can be proven that this figure was reached because the judge applied the wrong legal standard for calculating income, then the findings could possibly be challenged in the appeal.
Other common grounds that might support an appeal include:
- Instances of fraud committed by the opposing in connection with court proceedings
- Concealment of assets or other important information by the opposing party
- The discovery of new facts that could not be discovered during the original proceedings
However, an appeal will most likely be successful if it is based on an error in law committed by the court.
Are there Different Types of Appeals Available for a Divorce Decree?
There are several different ways that a final divorce judgment can be challenged, many of which are only granted according to the judge’s discretion:
- Appeal: This is the normal avenue for challenging a divorce decree. You usually have 30 days to file an appeal after the final judgment. Appeals must be based on errors in law, and in general no new facts can be introduced in the appeal.
- Motion for Rehearing: This is a very technical type of procedure that must be filed almost immediately after the judgment. Parties do not have an absolute right to a rehearing- the request must be granted by the judge.
- Motion for Relief from Judgment: This usually has a longer deadline for filing, but it only granted in limited circumstances, namely if the other party committed fraud or concealed assets. It is also known as a “Motion to Set Aside a Judgment”.
The most critical aspect for most of these appeal mechanisms is the time of filing. All of these procedures are associated with very strict deadlines, sometimes 10 days or less after the final judgment is issued.
If you miss the deadline, you may miss your chance to appeal the decree. Therefore, it is very important that you file in a timely manner. An attorney can inform you of the various deadlines associated with motions and appeals.
How Long Will the Appeal Process Take?
Every divorce case is different, but you should anticipate that the appeal process can take a very long time- sometimes as long as a year or two. This is especially true for appeals wherein the case is sent back or “remanded” to a lower court in order to weigh issues again. Thus, you should consider how the overall length of the process will affect your important life decisions.
Do I need a Lawyer for Appealing a Divorce Decree?
Appealing a divorce decree can be a very technical and complex undertaking. There are many different options to choose from, but there are also many limitations for each avenue of appeal. A divorce lawyer can be of great assistance when filing for a divorce appeal. Your attorney can help make sure your appeal is based on solid grounds and is filed in a timely fashion.
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Last Modified: 07-09-2014 01:42 PM PDT
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