Following a divorce becoming finalized — whether through settlement agreement or following a court determination — either spouse might still have a chance to contest certain determinations made by the court. One and/or each of the spouses can pursue an appeal or alter their divorce decree. Below is an overview of the appeals and alteration processes.
Having Your Divorce Ruling Appealed
After the divorce is finalized and a judgment has been entered, either and/or both spouses are able to appeal a trial court judge’s ruling to a higher (“appellate” or “appeals”) court. Because of the deference provided to the initial judge, it is uncommon, but can’t be ruled out for an appeals court to reverse a judge’s ruling in divorce cases. Settlement agreements typically cannot be reversed on appeal when both of the spouses agreed to the conditions of the settlement, unless there were issues with the way the agreement was reached or other enforceability matters.
Notice of Appeal
An appeal is restricted to some considerable error that happened throughout trial. If you think there was a factual error or law or an abuse of authority by the judge, then the appellate process starts with a notice of appeal to the other party. There are rigorous procedures and time frames about filing and serving these types of notices. Failure to adhere your state and county procedures could end up in forfeiting your right to file an appeal.
The Record on Appeal
After the notice of appeal has been filed within the court and served on all involved parties, the Record on Appeal is required to be created. The Record comprises of the court reporter’s trial transcript and the county clerk’s record.
The county clerk’s record comprises of all the documents, paperwork, pleas, and other testimonies that were filed within the court, in addition to any presentations and documents that were submitted at trial.
The court reporter’s transcript is a typewritten publication that includes everything that was talked about in court in the court reporter’s presence. Usually, each part of the testimony by any witnesses, attorney’s arguments, and statements by the judge and/or parties involved.
The Appellate Brief
The primary documentation of contention on an appeal is a written appellate “brief,” filed by the lawyers for both parties involved. The brief is documentation comprising of legal arguments, backed with source to relevant statutes, case law, the transcript of the reporter, and documentation in the record of the county clerk. The attorneys for those involved present their briefs to the appellate court and they could be allowed the chance to make oral arguments.
Oral Argument
When an oral argument is allowed, it will usually be at a minimum fifteen or thirty minutes for each side to present their arguments. There are no witnesses that are going be presented and no new evidence is going to be examined.
The Appellate Decision
After the appellate court receives the Record on Appeal, along with the Appellate Brief, and heard any oral argument that it deems necessary, it is then going to make a decision. The time differs by state, but 30 to 60 days after the court has a complete record is common for a determination to be reached.
The appellate decision probably is going to support the trial court’s decision. Nevertheless, if they don’t, the case is going to be sent back to the trial court to either alter the decision or to carry out a new trial.
Motions to Alter the Divorce Decree
The appeals process is costly and might not provide the outcome you want. Nevertheless, a alteration is far less costly and is the best way to alter certain factors of the divorce decree — including division of property, spousal support maintenance, child support and/or custody arrangements, and visitation.
A petition for an alteration is done by filing a “motion to modify” the divorce decree or ruling. This motion is typically filed with the same court in which the divorce decree was issued. A lot of states provide forms, verify with your local state and/or county courts and check if they are available.
When devising your motion to alter you are required to prove changed circumstances that make a modification warranted. For example, loss of employment or a promotion could be grounds for altering spousal or child support. Every state has their own rules concerning the alteration process and the evidence that is required for the alteration to succeed.
Altering child custody can be done, but it is challenging. Courts assume that the initial custody arrangements were appropriate, and they are hesitant to make custody changes. Nevertheless, they are going to when it is in the child’s best interest and there are changed circumstances that make a change required.
After the petition for alteration has been completed, it is going to need to be filed with the court and then served to your spouse. The court is going to schedule a hearing date and you will be able to submit your argument. If you both agree that altering it is necessary, you should attach their agreement to your petition and the court might make the modification without you having to go to court.
Need Assistance with an Appeal or Modification? Get the Outcome You Want with an Attorney
Appeals and modifications have particular requirements and filing deadlines. A knowledgeable divorce attorney in your state is going to know how to manage these matters and also offer you with important counsel on how to continue with your divorce judgement. Begin the process now by getting a hold of an experienced divorce attorney near you.
Source:
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Appeals and motions to modify the divorce decree. Findlaw. (2018, September 19). Retrieved December 21, 2021, from https://www.findlaw.com/family/divorce/appeals-and-motions-to-modify-the-divorce-judgment.html
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