In the context of the divorce process, an appeal is a review by a higher court of a lower court to determine if the lower court made a legal mistake. An appeal is not a new trial or a chance to introduce new evidence. The only evidence an appellate court will review in deciding whether a mistake was made is:
- Any audio recordings of the hearing or trial in the lower court.
- Items offered as evidence at the hearing or trial in the lower court.
- Lower court documents pertaining to the trial or hearing.
- Appeal briefs filed by the attorneys.
What Is an Appellant and a Respondent?
When the appellate process begins the defendant or person appealing is called the appellant or petitioner. The opposing or responding party is known as the respondent.
When Can You File a Divorce Appeal?
When an appeal should be filed depends on the kind of case you are appealing. Since divorce is a civil court procedure, most states have a 30-day deadline to file a notice of appeal. Once a notice to appeal is filed the amount of time your attorney has to file briefs and respond to the opposing counsel's briefs will depend on your state's laws.
Do You Have to Give Notice to Opposing Counsel?
Opposing counsel must be served with a copy of every document filed during the appeals process. This includes the paperwork that starts the appeal, all briefs, motions, affidavits and proposed orders and opposition papers.
You must include a certificate of service that tells how and when you gave the opposing counsel a copy of any documents. Most forms have a certificate of service located at the bottom of the page, which you can fill out. It's imperative that proof of service be provided and all postal receipts are kept should opposing counsel deny being given notice.
How Long Does the Appeals Process Take?
Some of the time required is built into the process. For example, the court reporter and court clerk are given, time to prepare transcripts and gather and transmit the record to the appeals court. There are also fixed periods for filing briefs. Once an appeal is ready, it is assigned to a department for consideration as soon as possible.
After consideration, the department issues most decisions within 90 days. Some decisions take longer. It sometimes takes longer in complex cases or when the Appellate Court judges are not unanimous in their opinion.
Will I Need an Attorney?
An attorney is not required but it would be in your best interest to hire one. You should at least have an attorney to consult with during the process if you are doing it alone. Court personnel will be able to answer any procedural questions you have regarding proper documents and when to file but, they are not allowed to give legal advice.
Will I Be Notified of the Status of My Appeal?
If you are representing yourself, you will receive regular updates from the Appellate Court Clerk's office. If an attorney represents you, your attorney will be notified and he/she will then apprise you of the status. Most states have websites set up so that you can search for the status of your appeal.
You will be given a case number that you can use to do searches and keep up with where your case is in the appeals process. When a decision is made in your case the clerk will mail copies of the decision to all attorneys on the case and all parties not represented by an attorney.
May I Ask That the Respondent Pay My Attorney Fees?
Yes, you will need to include your request in your brief. State why you feel you deserve to have your attorney fees paid and what court rule you feel authorizes the return of fees. You do not need to state the amount of the fees. This can be done after a decision is made and you have proof of how much the appeals process cost you.
Your state will have laws establishing a period in which an appeal can be filed. It is imperative that you carefully read your final decree of divorce before signing it. Look for mistakes in the wording and language, mistakes in monetary amounts and insist it is revised if you find any. Normally an appeal isn't considered unless there are special and compelling circumstances.
Things considered are rulings by a judge that does not comply with state laws, if there is an overwhelming inequity in the decree or if fraud or misconduct can be proven. So, read your decree for such things and be aware of the amount of time you have in which to file an appeal.