How to Appeal Your Divorce

Appeals courts will not overturn a divorce unless there was a clear error in the trial court.

By , Attorney · Cooley Law School
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A judge signs your divorce decree and enters it as an order of the court. So your divorce is over—right? Not always. Sometimes, if the trial judge incorrectly applied the law or made a clearly unfair decision, an appeal might work to modify the terms of your divorce.

Can You Appeal a Divorce Decree?

A divorce decree (or "judgment of divorce") is the judge's final order in your divorce, and once the judge signs it, your divorce is final. If you and your spouse settled your issues outside of court, your marital settlement agreement is usually incorporated into or referenced in the final decree.

A typical divorce decree outlines each spouse's rights and duties regarding:

A spouse who believes the divorce judgment is wrong can file an appeal with the appellate court. An appeal of any final judgment—such as a divorce decree—is difficult to win, though. The appeals process is technical and involves complex questions of law and procedure; most people who want to appeal a divorce decree will need to hire a specially trained appellate lawyer.

On top of having to pay additional attorneys' fees, one of the downsides of a divorce appeal is the amount of time it could take. You shouldn't expect a quick resolution when you appeal your divorce decree: Depending on the court's backlog and procedures, you might have to wait a year or longer from the time you file to get the appellate court's final ruling.

How a Divorce Appeal Works

Appealing your divorce is not a second shot at the divorce trial. You are not allowed to present new evidence—such as witnesses or documents—to the court of appeals. Instead, the court will consider only the record of evidence that was presented to the trial court and the legal arguments you and your appeals attorney make. If you failed to present evidence at the trial in the lower court, you will not be able to present it to the appeals court.

Here's a breakdown of the steps normally involved in appealing a divorce:

1. Decide What to Appeal

Before heading to court, you will need to decide whether to appeal all or part of your divorce judgment. Most of the time, you can't use an appeal to reverse the entire divorce—rather, you would use an appeal to challenge certain terms of the divorce. For example, you might want to appeal only the part of the divorce decree dealing with property division, or maybe you want to appeal both property division and alimony (spousal support).

Overturning a trial judge's decision doesn't come easily: Courts generally grant appeals only when you can demonstrate that the trial court

  • abused its discretion, for example by obviously ignoring evidence, or
  • made a legal error, for example by misapplying or misinterpreting the law.

Because the law gives trial judges a lot of discretion in evaluating and deciding cases, appellate courts are reluctant to overturn a trial court's decision unless it's clearly wrong—they will not overturn a decision just because it seems unfair.

You might also be successful in your appeal if you can show that

  • you've uncovered new facts that you couldn't have known about or discovered during the divorce proceedings
  • your ex-spouse lied about something, or
  • your ex-spouse hid assets or income.

Most of the time, it's not enough to show that you didn't know about some fact or asset during the divorce proceedings. You must also show that had the trial court known of it, it would have had a "material" effect on the outcome—in other words, that the outcome probably would've been different. For example, if you find out after the divorce decree is entered that your ex-spouse lied about having an affair, this fact (although maddening) probably wouldn't have had an effect on the judge's decision—especially if your divorce was "no fault." If the court of appeals agrees that the new fact is material, it might remand your case so the trial court can consider the new information (see discussion below).

For most people, consulting with an attorney before filing a divorce appeal is well worth the effort: If you do not have legal grounds (reason) for your appeal, you will waste a lot of time, money, and effort. A lawyer who specializes in divorce can give you an honest evaluation of your case and chances of success in an appeal.

2. File a Notice of Appeal

To officially begin your appeal, you will need to file a "notice of appeal." The notice of appeal lets the courts, your ex-spouse, and any lawyers involved know that you're appealing. Many states require you to file the notice of appeal in both the trial court and the court of appeals.

Most appeals courts have very firm deadlines by which you must file your notice of appeal. Often, these deadlines are short—for example, your court might require you to file a notice of appeal within 30 days of when the judge signed your divorce decree. After filing the notice, you will need to serve copies of it on your ex-spouse (or your ex's lawyers, if any). If you don't follow the procedural rules, the court might dismiss your appeal and not allow you to refile.

3. Prepare the Record

The next step in the appeal process is for you and your lawyer to prepare the "record of appeal." This usually includes the:

  • Trial transcript. The trial transcript is a word-for-word written version of what was said during the divorce trial. You will need to pay for a copy of the transcript, which can be expensive.
  • Case record. The case record includes all of your divorce case documents, like pleadings (documents you filed with the court) and exhibits (evidence such as documents and photographs produced at trial or attached to pleadings).

You can't include any new evidence in the record of appeal that you had access to or knew of at trial but did not present to the trial court.

4. Draft and File the Appellate Brief

Perhaps the most labor-intensive aspect of a divorce appeal is creating the appellate brief. A "brief" is a written document that lays out the writer's legal arguments and support for the arguments. Every court of appeals has its own detailed instructions on how to format appellate briefs. For example, many courts require briefs to be written in large, double-spaced font, and include an appendix so the court can refer to the different sections of the brief. Most also require you to attach copies of any laws and court cases cited.

Drafting appellate briefs is so complex that many attorneys won't write them—rather, they will refer clients out to attorneys who specialize in appeals and appellate brief writing.

Both spouses must submit a brief to the court. After the briefs are submitted, the court will either notify the parties of a date for oral arguments or issue a decision.

5. Attend the Oral Argument

In most state courts of appeal, a panel of judges (usually three) decides the outcome of each case. Many courts of appeals offer the opportunity for the parties to orally present their arguments to the panel of judges in a process called "oral argument." Some courts schedule all appeals cases for oral argument. Others schedule oral argument only when a party requests it or when the judges believe it would be helpful in making their decision. If you think that you would like to have an oral argument, make sure you find out the process for securing a time and date.

The court usually caps the amount of time for each party's oral argument at 15 minutes or less. The court might allow the parties to reserve a portion of their time to respond to the other side's argument, and judges often ask the participants questions. The whole process usually takes less than an hour. After the parties finish their oral arguments, the judges close the hearing and take the case under advisement—meaning they will not issue an immediate decision.

6. Receive the Court's Decision

In general, appellate courts issue their decisions anywhere from 30 to 90 days after the conclusion of oral arguments. The court's decision will do one of the following:

  • Affirm the trial court's order. A decision affirming the trial court means that the appeal was unsuccessful and the trial court's order remains binding as written.
  • Reverse the trial court's order. When an appeals court reverses the trial court's order, the appeal has been successful. The appeals court's decision will specify what will happen next—for example, whether the case is remanded (see below) to the trial court or a new or modified order is entered.
  • Remand the case to the trial court. To "remand" the case means that the appeals court wants the trial court to reconsider the case. Most often, when an appellate court reverses the trial court's decision, it remands the case with instructions for how the trial court should decide the matter.
  • Modify the trial court's order. In cases where the appeals court believes the trial court made an error, the appeals court might issue an amended judgment of divorce or otherwise modify the trial court's order so that it is in keeping with the law.

Most appeals courts send their decisions electronically—either you or your attorney (along with your ex-spouse's attorney) will receive a notification to log on to the court's filing system to read the decision. Review it carefully to see if you need to take further action.

Is Appealing Your Divorce the Best Option?

You shouldn't appeal your divorce if you can resolve your issues within the trial court. For example, if you need to modify or stop child support or spousal support payments that the judge ordered in your decree, the right way to make the changes is to ask the trial court to modify the order—not to appeal it. In many states, either spouse can file a formal request to modify child support or spousal support if circumstances have changed since the judge issued its final order.

Additionally, the court of appeals is not the place to go if you need to enforce a provision in your judgment. Instead, your local court has a process you can use to enforce the terms in your final divorce decree.

Finally, if you or your spouse discover a mistake in your divorce decree, you can agree to amend the decree without going through the divorce process. Both spouses would need to sign and submit the amendment to the court for approval. Once the judge signs your amended decree, it will replace the previous one.

Overall, your chances of winning a divorce appeal are slim. But if you believe that you have grounds for appealing some or all of your divorce, strongly consider consulting an experienced divorce appeals lawyer. A lawyer will know if there are other options—such as a post-decree motion—that are more likely to give you the results you want.

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