Appealing Divorce and Custody Decisions

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by | Nov 26, 2019 | Blog, Child Custody, Divorce

After litigation is over, it is not uncommon for one or both parties to be dissatisfied with the outcome. While the parties may have a legal right to appeal, winning an appeal is difficult in matrimonial actions for several reasons. Simply being unhappy about the judge’s decision is not enough to win an appeal. If you are considering an appeal, you should understand these issues.

Reason for appealing. In order to successfully appeal a decision, the appealing party must show that the judge made a significant legal mistake, misapplied the facts to the governing law, or an abuse of discretion resulting in harm to a party.

Appellate courts only review issues that were raised at trial. The parties cannot re-litigate their case or introduce new issues.

Deference given to trial judge. Matrimonial actions are very fact specific. Trial judges have broad discretion to evaluate evidence. As a result, appellate judges will defer to the trial judge’s decisions regarding issues of fact and credibility of witnesses unless they run contrary to governing law.

Divorce allocution. Where the parties agree to a divorce settlement, they can and should go through a divorce allocution. An allocution is where the judge asks the parties on the record and under oath whether: they understand the terms of the agreement, they have no reservations regarding settling the actions according to those terms, they are satisfied with the agreement as best they can be, they are satisfied with their respective attorneys and the representation their respective attorneys provided them, they are entering into the agreement on a knowing and voluntary basis without duress or other influence, and the agreement sets forth the parties entire agreement. This allocution removes many of the grounds a party may use in objecting to an agreement afterward.

Time and expense. The appellate process can be time-consuming and costly requiring payment of attorney’s fees, court costs and appellate printing services to assemble the records and transcript. In addition, the appeal may not end the matter because appellate courts can reverse, remand, affirm or modify the decision of the lower court, or parts of the decision, which means the parties may simply head back to the lower court for more litigation or appeal to the highest court of the state.

There are times when clear mistakes have been made by the trial court and an appeal is warranted. However, the parties should consider using mediation to settle their divorce issues initially as well as in place of the appeal process where a dispute has arisen after settlement has occurred. If filing an appeal is warranted, it is crucial to utilize an experienced attorney because the process is highly technical.

If you are considering appeal of your divorce judgment or renegotiating your divorce settlement agreement, contact us to discuss the best way to resolve your matter.

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