Should I Appeal My Divorce Case? 10 Divorce Questions To Ask

appeal divorce caseBy Jennifer M. Paine

Cordell & Cordell Divorce Lawyer

You may be unsatisfied with your trial judge’s ruling. You may have a right to appeal your divorce case. But should you?

It is easy to say “yes” when you are in the immediate afterglow of litigation and facing an unfavorable ruling. Many jurisdictions make it even easier by giving you an “automatic right” to appeal certain rulings, meaning you do not have to obtain permission for the appeal.

And, many of those jurisdictions require only a one-paragraph form and a filing fee – filed online no less. Within minutes, with a few clicks of the mouse and a single charge to your credit card, you could be appealing your case.

But wait! Having a right to appeal your divorce case does not necessarily mean you should, and acting on initial reactions to a trial judge’s ruling could leave you worse off and heavily indebted to attorneys. Sometimes, it is better to accept a ruling and move forward.

Before you decide, consider these 10 questions:

1. How long do I have to decide if I should appeal?

This is the most important immediate question. Depending on the type of ruling, you could have as little as seven days, or less, to file your appeal or as much as 30 days, or more.

In many jurisdictions, if you miss your filing deadline, you are precluded from filing your appeal late. Some jurisdictions allow you to request permission to file your appeal late, but only after paying a fee and showing a really, really, really good reason for not filing in time.

Just needing more time to think about it is not enough. Not knowing the deadline is not enough, either. Be on time, or you could lose your right to appeal altogether.

Cordell & Cordell understands the concerns men face during divorce.

2. How much does a divorce appeal cost?

Divorce appeals can be expensive. The initial filing fee is usually a few hundred dollars.

However, although you are not paying for depositions, witnesses, and expert valuations, as the appealing party you will be responsible for the record on appeal. This includes copies of all pleadings, motions, briefs, written opinions and exhibits.

This also includes transcripts of the pertinent hearings (perhaps all!). If your trial court video-records, then you could also be responsible for copies of videos for the pertinent hearings.

Add to this attorney fees and the potential for the appellate court to award the non-appealing party attorney fees and costs if you lose, and the cost for an appeal can far exceed the cost of a trial.

Prepare a draft budget with your attorney (and if your attorney does not know how much things cost on appeal, consider retaining an attorney who does appeal work!) so that you can determine whether you can afford the appeal process.

3. What do we need to file? And at what stages?

The family law appeal process in many jurisdictions starts with filing a form called a “notice of appeal.” In others, you will be required to file the notice and a summary of your argument.

At some point, your attorney will also file, or ensure the trial court has filed, the record on appeal. Your divorce attorney will probably also have to notify the appellate court of any changes in the laws that affect your case.

Your ex will probably respond to your appeal, and you may have an opportunity to reply. All of these cost money, and so they should be in your budget.

4. What are my legal arguments for appeal?

Sit down with your divorce lawyer and review your trial judge’s ruling in detail. Identify all legal errors (applying standards, reciting old law, relying on a case opinion that was overturned, etc.), factual errors (the judge said your wife did the driving to school, but the testimony shows you did), and evidentiary errors (a document was excluded because it contained hearsay, when it really contained an admission).

Ask your attorney to explain why each error is an error and what “standard of review” applies to it. If your attorney does not know – run! – consider retaining an attorney who is experienced with family law appeals.

It is important to know the standard of review, that is, the amount of deference the appellate court will give the trial judge on certain rulings. Factual rulings are most favored, and it is difficult to win an appeal just on factual errors, whereas legal errors and evidentiary errors the appellate court gets to decide anew.

5. Do I have a right to oral argument?

appeal family law caseMany jurisdictions permit oral argument, during which your attorney explains the reasons for your appeal, the law that applies and why the appellate court should rule in your favor.

Litigants do not testify, and neither do witnesses. Instead, the attorney argues your case and answers questions from the appellate court.

Some attorneys prefer to “argue on the briefs,” which means the appellate court reviews the various writings but does not listen to oral argument, whereas other attorneys find that oral argument helps put the entire case into perspective.

An attorney skilled at appellate argument, which is far different from cross-examination, is essential here. Ask your divorce lawyer what your jurisdiction does, what your attorney prefers and, most of all, why.

6. How long will my case be pending on appeal?

Except for emergencies and those are rare, most family law appeals take several months, up to a year or more. During this time, many things can change for your family.

The passage of time may make an appeal moot. For example, if you are appealing a ruling on your children’s school district, but the children go to school there while your case is pending for a year, you may find it better to leave them there than to change them again if the appellate court does rule in your favor.

You may even find that you have adjusted to the situation and accept it.

7. What is the status of my order in the meantime?

You may be surprised to find out that many orders are enforceable even while you are appealing them. The orders must be “stayed pending appeal,” meaning that they are not enforceable until the appellate court decides.

For orders that change the status quo – e.g., a move across the county – a stay may be helpful. But, for new cases in which the alternative is no order at all, you may find the appellate court unwilling to stay the order.

Ask your divorce attorney whether you can stay the order, when that process occurs, and what happens in the meantime.

8. Can I file other motions in trial court in the meantime?

Similarly, if an emergency occurs while your appeal is pending, you will want to have the ability to address the emergency with the trial court.

Ask your attorney if the appeal stays the entire case, or just your order, and what options you have to address emergencies that occur after you file your appeal.

9. If I win the divorce appeal, what happens?

If you win your appeal, what are the likely outcomes? Because most family law decisions are fact-specific, most appeal wins result in a remand to the trial judge for a new hearing, a clarification of the record or some combination of the two.

It is unlikely that the appellate court will issue a brand new order in your favor, except for patent mistakes that are easy to correct (such as a child support credit). Instead, you are likely to find yourself in front of the trial judge that you appealed. Again.

10. If I lose the appeal, what happens?

Some guys want to “take it to the Supreme Court!” Except for serious issues of constitutional or state law, it is unlikely you can appeal your case again.

You will have to accept the ruling and move on. In many jurisdictions, the ruling could include attorney fees and costs for the non-appealing side. Be sure to discuss this range of outcomes with your attorney, too.

Conclusion

An appeal is your avenue to redress wrongs committed in the trial court. You should not shy away from the divorce appeal process simply because (usually) it takes several months and could be expensive.

Instead, you should have this cost/benefit analysis with your divorce attorney early and often and decide together how best to proceed for your family.

Cordell & Cordell:

Divorce Attorneys For Men

Jennifer M. Paine is a Michigan Divorce Lawyer with Cordell & Cordell. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims.

Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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16 comments on “Should I Appeal My Divorce Case? 10 Divorce Questions To Ask

    the family judge took her sweet time in signing and recording a final divorce decree in my friend’s case. it was months. the county we live in is backed up on posting records on line. yesterday we learned the judgment of divorce had actually been signed by the judge in july but only now being posted on line. we received no other notification. we have missed the deadline on filing for an appeal because of this untimeliness. what can we do?

    My cousin is thinking about getting a divorce. It is good to know that she can appeal the case if things don’t go her way. That is good for her to know because she has two kids and doesn’t want her husband to have any type of contact with them. But it is also good to know that appealing can take a while to be completed.

    This is a dad’s divorce page and it’s littered with women upset because they couldn’t clean some man out in a divorce? Shameful nevertheless appealing a case is a waste of time unless it’s strictly money related anything with kids is highly unlikely to get overturn since trial courts already have broad discretion on the best interest of the child.

    Judge ruled in my husband favor and l think l was judged with extreme prejudice because the judge knew my husband attorney…there are several things that where did wrong on my case.Like where is the USA do they order a woman that is not working with a disability out of the home that was purchased with the ex while they are married. I was a stay at homemaker and mom for about 11 years now since l last got laided off from the state of Texas, and l currently have no income as well as have temporary custody of my two grand sons ages 12 and 11, she did not order the house to be sold but instead ordered that my ex pay me $50,000.00 and he gets to live in the home , just need a fair and honest answer as to why the judge did all of this when l clearly did nothing to her.

    He lost his high paying position. Then, stopped paying spousal support with no warning, no court papers filed and no answer to any legal letters. They went to court, and it was proven he had plenty of cash to pay the support. (willful contempt?) It was also proven that the wife had disabilities which made it difficult to work full time, something that her ex knew about from the beginning. If one loses a job, immediately file for reduction of spousal support. Most of the time these things can be worked out without a formal hearing. But, failing to pay court ordered support with no intention of filing for reduction can end up as contempt and that is not good for anybody involved. Yes, one can always appeal the court ordered support but, unless there were obvious mistakes made during the hearing, the judgement will probably not be overturned and more money will be spent because it’s not cheap to appeal.

    I did self represent, (Pro-Se) I wouldn’t advice it. I know every case is different. But court is court and we are little people, no one really wants to waist their time probing over briefs that you’ve spent countless hours preparing. My case in a nut shell,,, husband is adulterer, girlfriend was supenion. I moved in with husband 2 years prior to marriage, was convinced to sale my home to add on to his, help pay for his new motorcycle, boats etc. After we were married the deed to his house stayed solely his. I considered it my home too expecially since I put countless hours of physical labor, not to mention money, to update and make it nice for our family. He worked hard on it too but it didn’t cost him as much, since I was paying half of all our living expenses. He was hell bent on not losing anything he had. I could write a book. Abuse was involved, but never used in court. To shorten my nightmare,,,, all the records that I showed, which I had to resubmit because my file was lost in the hands of the Appellant Court, the reciepts and cancelled checks, etc. that proved I put equity into the home was of no avail… complete waste of weeks and weeks of late night preparing, not to mention the tweeking if the pages, hundreds of pages bounded in the right color briefs, motions typed in triplicate and filed, not to mention 2 trips to the courthouse to correct a typo. (4 hours round trip) Now the staff was curtious. All I asked was that I got half the equity we put in the home the time we where together. (8 years) . But since the equity was put in prior to our getting married I was pretty much screwed and everything I worked hard for was tied up in a house I had no claim to. The courts didn’t feel the home was transmuted. I’m thinking it was because my checkbook had my business name on it, which was used for business as well as personal, they claimed it was all a business expense,,,funny I didn’t get to write any of those expenses off when filing our taxes. Just sharing my experience, if you think you got screwed the first time , you’re just setting yourself up for another.

    i wanted to go in front of the judge to settle the divorce but my wife’s attorney pushed to settle the day before and I never agreed and when we got to court the judge asked if I was ready to settle I said no the judge called me a liar and said the lawyers called his office and said we had settled but my side never called and the judge never questioned her side about why he lied then my lawyer advised me to take the offer I feel like I was railroaded into taking the settlement can I appeal the case ????

    I need a divorce since i am leaving alone with my two children last 3 years. If i apeal the casewill l get something from him .He is in private sector . my case is my father i. Law whants to make physical realation with me and ever one in my house aposs me . what should i do if will i apeal the case shoukd i got something. From them. For my children. Future

    My divorce was final 2 weeks ago. I live in TN and have 30 days to appeal the decision. Our divorce was very simple, based on irreconcilable differences. He took what was his, I took what was mine, we agreed on a price for me to buy him out of the house, and there has been no arguing… only sadness. The papers don’t show the “differences”, but it was alcohol. My ex is what is called a functioning alcohol. He can go for months with no problem and then one day he’s an absolute mess, ends up in jail or the hospital from whatever he’s done while he’s drunk. This sobers him up pretty quick, we deal with the aftermath of his actions, he apologizes constantly and goes back to being the wonderful man that he is when he’s sober, and then cycle repeats. I’ve stood by him and been a frustrated, but faithful wife for over 18 years, but the last year has been worse than most and I finally reached a breaking point. For fear of my own health just from the ongoing stress I filed for divorce. I love him very much. All I have ever wanted for him is good. I never wanted to divorce HIM… only the alcohol. I have seen him almost every day since the divorce as he moves a few of his items from the house. Each time he tells me that he understands and doesn’t blame me, but that he so sorry and wishes he could undo all the mistakes he’s made. Basically we both accepted the fact that he can’t seem to quit drinking and I can’t accept it any longer. I’m sure you’re asking then why appeal. Two nights ago he was found lying in the middle of the road with a serious head injury. We’re not sure what happened to him. He has since undergone two surgeries to stop bleeding on the brain, one of which involved actually removing a section of his brain. He has shown very minor reflexes in each limb, but extensive rehab will be required for his physical recovery, and it is unlikely he will ever be the same again. He desperately needs someone to be there for him 24/7. His daughter and I have taken turns sitting at the hospital with him, but she has an young child and I simply don’t see her being able to provide him the kind of care he will need. He has siblings, but they too have lives and health issues of their own. I am the person who signed on for this 18 years ago. I can deal with the stress of caring for someone I love. I just can’t deal with alcohol and given his condition he won’t be getting that anytime soon if ever again. My question: Is this a situation where a court would grant an appeal to the person who actually filed in the first place?

    SOmething very wrong in this country..
    Wow.. Exohexohex,
    You sound like a normal, average intelligent person for sure..
    The court system sided with you? And gave you lots?
    Do you even care the morale of the whole thing?
    I’m not by any means advocating adultery but you know what the real big problem is in divorce culture in USA? People like you who go for jugular out of emotion.. Not all the fathers are cheater who abandon their own kids for new relationship. Sometimes women force fatherhood to get abandoned.
    Good luck raising kids by yourself with ALL THAT ALIMONY. You are the prime example of how current, failing system and some of the emotional leaches who benefit from that.

    Lifetime alimony
    And I make plenty of money I know. And today I whipped out my alimony account debit card and paid for my birthday dinner. It was wonderful and thank you for dinner for me and our children. You are a putz and I am happy that you don’t call our children, who needs your perspective as evil is contagious. I changed churches and faith even and I vote for anyone who is anti gun or abortion now that we are divorced. I hate them both and we know how much you love guns and abortions and these are things you are very experienced with. Love the alimony always. Yours never again, exohexohEX.

    Happy
    The courts are never going to side with an adulterer who uses family money for adultery and who dissipates assets. Appeal away. I am living a whole lot better than ever when I was with you and now I do not pay your living expenses. And I use all of my Alimoney or alldemoney for our children. I have put in a new transmission among other costly vehicle repairs and when the kids tell me they need something, I whip out my checkbook. I deposit money into our grandchildren’s 529s thanks to my alldemoney and I hope you and the new spouse live happily ever after, but we all know the end of that story before it begins. See ya and wouldn’t wanna be ya. P.S. I’m saving my alldemoney for law school for one of our kids and a big old family trip to Europe. And I will think of you always when I pay for these things and how you thought the appeals court would side with you. We haven’t heard back yet, but I am already busy planning how to spend my money and you are an idiot who is going to pay me even more attorney fees. Bye bye now.

    Wow…that is pretty awesome!! Enjoy your trip to Europe and if you can, visit Germany. It is beautiful there, yummy food, and amazing beer.

    I wish i could appeal my case, but i am not in a financial position to do so. I feel i have been railed road for being a dad – mother does not provide a shred of proof for her demands, yet she gets the benefit of the rulings. I feel the judge has already pre-determined the outcome, i feel extreme bias coming from the judge

    Self-Represented Appellant
    I’m in the process of appealing my case right now. I just sent out my appellate brief yesterday. There is a whole slew of things involved in my case. Imputed income based on earning capacity, the judge understated my ex’s income when calculating support and refused to correct the overpayments I had made, my ex lied in court the record shows the truth, I was ordered to pay $900 for day care expenses and there are no schedules showing the time the children were cared for, no hourly rate, not even a verification that my ex actually paid for the service at all (i.e. no receipt showing payment). Just her word to the judge saying she paid in cash and doesn’t have a receipt. The judge actually found me in contempt for not paying this, and I may go to jail for this if this appeal doesn’t come out in my favor.

    My ex works for the county and there is apparent collusion between the CSA, the judge and my ex. What rights do I have in the state of Wisconsin to have this case remanded for re-determination in an adjacent county? What is to prevent this from happening again by the same judge and same CSA? I can only imagine what they would do to me next if they had the opportunity since I appealed this case. The transcripts show they were clearly in error and I don’t think they were expecting that I would go through with it… but they were wrong. They left me no choice. Any advise for the self-represented?

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