Appeals and Motions to Modify the Divorce Decree

After a divorce becomes final, either spouse may have reason to challenge certain court decisions. This can be done either by filing for a modification of a divorce decree or appealing the court's decision.

The following is an overview of the process to appeal a court order relating to a divorce proceeding.

Appealing Your Divorce Judgment

A divorce court judge's decision can be appealed to a state court of appeals. While deference is given to 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.

The scope of 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.

Divorce settlement agreements usually cannot be overturned on appeal because both spouses agreed to the terms of the settlement. A spouse may try to argue that there were problems with how the agreement was made, which could present an enforceability issue.

Notice of a Divorce Appeal

The appellate process begins with 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 result in losing your right to appeal.

The Record on Appeal

Once the notice of appeal has been filed with the court and served on all parties, the Record on Appeal must be prepared. The states vary in their methods of recording court transcripts. You should speak with your court clerk about what records are kept and how to retrieve them for your appeal.

The clerk's record is all of the documents, papers, pleadings, and other written material that were filed with the court. It includes all exhibits and documents that were introduced at the trial. The Record on Appeal may contain other court documents (such as motions) than were introduced originally at trial.

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

The Appellate Brief

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

Once retained, divorce attorneys for the parties submit their briefs to the appeals court. An attorney must be retained in order to represent you in the appellate court, regardless of whether they represented you originally. You will need to speak with your attorney or retain new representation for your case.

The attorney may be required to make a statement when filing a brief as to whether oral arguments are needed or not.

Oral Argument

If an oral argument is granted, it will typically be for no more than 15 or 30 minutes for each side to present its argument. No witnesses will be called and no new evidence will be considered.

The original trial court lawyer may represent you on appeal, or you may have new representation. The attorney will discuss the errors that were made in the trial court, and 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, if any, 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 either modify the decision or conduct a new trial. The court can also just 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 is seeking.

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

A request to modify a property settlement, child custody case, or alimony case requires filing a "motion to modify." This motion is filed with the same court where the divorce judgment was issued.

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 demonstrate changed circumstances that warrant a change. For instance, the loss of a job can be grounds to modify alimony or child support.

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 is difficult. Courts are reluctant to make custody changes soon after the custody agreement has been approved. However, they will if it is in the best interest of the child and there are circumstances that make a change necessary.

Once the petition for modification has been completed, it must be filed with the court and served on the ex-spouse. The court will schedule a hearing date for the presentation of arguments.

If you and your spouse agree that a modification is necessary, you should attach your agreement to your petition. The court may make the modification without the need for a court appearance.

Need Legal Help with an Appeal or Modification

Presenting an appeal in a divorce or family law matter is highly technical and requires the help of an attorney. To determine if you have a valid cause to file an appeal, speak with a local family law attorney.