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.
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:
However, an appeal will most likely be successful if it is based on an error in law committed by the court.
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:
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.
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.
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.
Last Modified: 02-01-2018 10:46 PM PSTLaw Library Disclaimer
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