THREE THINGS TO CONSIDER BEFORE YOU DECIDE AN APPEAL OF YOUR DIVORCE IS YOUR NEXT CHOICE OR EVEN THE RIGHT CHOICE
On Behalf of | Apr 28, 2017 | Firm News
After you received a Final Judgment dissolving your marriage, you probably felt a multitude of feelings ranging from relief to sadness, which are all normal feelings after a divorce. You may also feel that the Final Judgment did not fairly divide your marital assets or debts, or sufficiently provide for your support in terms of the amount or length of alimony. On the other hand, you may be the spouse who is ordered to pay alimony or portions of other spouse’s attorneys’ fees and feel that the judge did not properly consider all the facts in your case. In either case, if you feel that the Final Judgment is grossly inequitable, here are THREE things to consider before you take the step to file an appeal
First, the time constraints on when you can file an appeal are important. While you have fifteen (15) days from the filing of the Final Judgment to request that the judge re-hear your case, this does not necessarily mean that the time to file an appeal of the Final Judgment will be tolled or suspended. You need to make sure that you are seeking a rehearing from a Final Judgment that is “final in nature.” Normally, you have thirty (30) days from the rendition of the Final Judgment to file a Notice to the appellate court of your intent to appeal and pay the filing fee.
You may decide that because of the time constraints you want to forego seeking a re-hearing and simply seek an appeal of the Final Judgment. One caveat to doing this is that where your appeal is based on the judge failing to find specific facts supporting the Final Judgment, it has been established that the appellate court will not reverse the Final Judgment unless a re-hearing is first entertained and rejected. But, where your appeal is based on the argument that there is a lack of sufficient evidence supporting the Final Judgment, a motion for rehearing is not required.
Second, it is best to consider the type of “standard of review” the appellate court will apply to your appeal. In most appeals of a Final Judgments dissolving a marriage, the appellate court will utilize an abuse of discretion standard. An abuse of discretion standard is a low standard that requires the appellate court to reverse portions or all of the Final Judgment award, including alimony, child support, attorneys’ fees, or equitable distribution award only if it finds that the trial court abused its discretion. However, where the judge incorrectly applied the law to the facts of your case or interpretation of the law, then the appellate court can review your Final Judgment de novo or as if, the appellate court was retrying your case.
Third, an appeal process takes time, on average, a year to two years. This is because after a notice to the appellate court is filed, you have seventy (70) days to file a brief detailing your arguments, then your ex-spouse has twenty (20) days to file an answer to your brief, and finally, you have twenty (20) days to file a reply to your ex-spouse’s answer brief. Each side can also seek extensions of time to file their briefs, which extends the appeals process even further. Also, either side can request that the parties be given a chance to orally argue their side before a three-panel judge.
Whether an appeal should be your next choice—or the right choice—requires consideration of many things including the time, expense and the overall outcome you wish from an appeal. Contact our offices at 386-253-1111 for more guidance and advice on whether you should seek an appeal and what to expect from your appeal.