Appeals and Motions to Modify the Divorce Decree

A divorce decree is the final judgment in the divorce process. After a divorce becomes final, either spouse may need to challenge certain court decisions. You can start this by either filing for a divorce decree modification or appealing the court's decision.

Here's an overview of the process to appeal a court order relating to a divorce proceeding.

Appealing Your Divorce Judgment

Appealing a family court judge's decision goes to the state court of appeals. The appeals court will favor the original judge's opinion in a divorce case. It is unusual, but not impossible, for an appeals court to overturn the lower court judge's decision.

An appeal is limited to significant errors that occurred during the trial. This could be an error of fact or law or an abuse of discretion by the judge. For instance, the judge applied the wrong law in your case or did not allow you to present critical evidence. Generally, an error is one that would change the outcome of your case.

The court will not overturn divorce settlement agreements on appeal because both spouses agreed to the settlement terms. A spouse may try to argue that there were problems with making the agreement, which could present an enforceability issue.

Notice of a Divorce Appeal

You will file your appeal and pay a filing fee with the proper court clerk. The appellate process begins by serving a notice of appeal to the other side. There are strict procedures and deadlines for filing and serving notice. Failing to follow the filing procedures for your county and state could cause you to lose your right to appeal. Consult a divorce lawyer to ensure you follow the process and court rules.

The Record on Appeal

You have filed a notice of appeal with the court and served on all parties. It's time to prepare the record on appeal. The states vary in their methods of recording court transcripts. It would be best if you spoke with your court clerk about how they keep records and how to retrieve them for your appeal.

The clerk's record includes all the documents, papers, pleadings, and other written material filed with the court. It comprises all exhibits and documents introduced at your trial. Any court documents and motions originally introduced at trial may also be in the Record on Appeal.

The court reporter's transcript is a typewritten booklet of everything said in court in the presence of a court reporter. Typically, it includes all testimony by witnesses, attorney arguments, and statements by the judge or parties.

The Appellate Brief

The primary form of argument on appeal is the written appellate brief filed by the attorney for each party. A brief is a document containing the legal arguments involved in the case. It's supported by applicable case law, statutes, the reporter's transcript, and the clerk's record documents.

You must hire a divorce attorney to represent you in the appellate court. This does not have to be the attorney who represented you in your divorce.

The attorney may need to state whether oral arguments are required.

Oral Argument

In an oral argument, each side is given 15 or 30 minutes to present its argument. No witnesses are called, and they will not consider new evidence. The attorney will discuss the errors that the trial court made. They will explain why and how that affected the decision of the initial divorce case.

The Appellate Decision

Once the appellate court has the record on appeal, the appellate brief, and has taken oral arguments, it will make a ruling. The time varies from state to state. Typically, an appellate court may issue an appeal decision in as little as a month or as long as a year or more.

The appellate court may uphold the trial court's decision or send the case back (remand) to the trial court to modify the judgment or conduct a new trial. The court can also vacate (overturn) the decision in some circumstances.

Motions to Modify a Divorce Decree

The appeals process is expensive and may not provide the results an ex-spouse seeks.

It is far less expensive and typically more successful to ask for a divorce decree modification. The court can change some aspects of the divorce, such as spousal support payments, child support, child custody, and visitation schedule. Some modifications are easier to achieve than others.

A request to change a property division settlement, child custody, or alimony case requires filing a "motion to modify." You will file this motion with the court that issued your divorce decree.

Most states provide specific forms to complete. Check with your local state and county courts to see if they are available.

When drafting a motion to modify, you must show changed circumstances that warrant a change. For instance, job loss could be grounds to modify support orders or child support payments.

Each state has its own rules about the modification process and the proof that is necessary for the modification to succeed.

Modifying child custody can be done, but it isn't easy. Courts are reluctant to make custody changes soon after approving the custody agreement. However, they will if it is in the child's best interest, and some circumstances make a change necessary.

Complete the petition for modification and file it with the court, along with a filing fee. Your ex-spouse needs to be served. The court will schedule a hearing date for the presentation of arguments.

If you and your spouse agree that a modification is necessary, attach your agreement to your petition. The court may approve the modification with no court appearance.

Mediation

You may also consider going through mediation with your ex-spouse if you need to change your final orders. It's an effective method, especially if you need to modify child custody or visitation.

Mediation is a collaborative process. The parties meet with a neutral third party who facilitates the session. It can help you develop better communication skills with your ex-spouse. It is cost-effective and may save you time over the traditional modification process.

Get Legal Help with an Appeal or Modification

Presenting an appeal in a divorce or family law matter is highly technical. It requires sound legal advice. To determine if you have a valid reason for appeal, speak with a local family law attorney. An attorney can give you legal advice and fight for your rights.

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Can I Solve This on My Own or Do I Need an Attorney?

  • You may not need an attorney for a simple divorce with uncontested issues
  • Legal advice is critical to protect your interests in a contested divorce
  • Divorce lawyers can help secure fair custody/visitation, support, and property division

An attorney is a skilled advocate during negotiations and court proceedings. Many attorneys offer free consultations.

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Don't Forget About Estate Planning

Divorce is an ideal time to review your beneficiary designations on life insurance, bank accounts, and retirement accounts. You need to change your estate planning forms to reflect any new choices about your personal representative and beneficiaries. You can change your power of attorney if you named your ex-spouse as your agent. Also, change your health care directive to remove them from making your health care decisions.

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