How to Appeal Your Divorce

A judge has signed your divorce decree and entered it as an order of the court. So your divorce is over, right? Not always. You (or your ex) might be able to appeal the judgment—but it won't be easy.

When Can You Appeal a Divorce Decree?

A divorce decree (or "judgment of divorce") is the judge's final order in your divorce. You may appeal to a higher court if you believe the judge's decision was wrong. But you'll need to do that before the court's deadline for filing a notice of appeal—usually within 30 to 60 days after the judge signed your divorce decree or judgment.

Reasons for Successful Appeals

It's not easy to overturn a trial judge's decision on appeal. Beyond certain requirements in the laws, judges typically have fairly wide leeway (or "discretion" in legalese) when they're evaluating and deciding cases. Because of that discretion, appellate courts are reluctant to overturn a trial judge's decision unless it's clearly wrong—not simply because it seems unfair.

To win an appeal, you'll generally need to demonstrate that the trial judge:

• overstepped the bounds of their authority (known as an "abuse of discretion"), such as by obviously ignoring evidence, or
• made a legal error, such as misinterpreting or misapplying the law.

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

• you've uncovered new facts that you couldn't have discovered during the divorce proceedings, and the outcome probably would've been different if the judge had that information
• your ex-spouse lied about something, or
• your ex-spouse hid assets or income.

How a Divorce Appeal Works

Appealing your divorce is not a second shot at the divorce trial. You aren't 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 attorney make. If you didn't present some evidence at your divorce trial, you won't be able to present it to the appeals court.

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

Decide What to Appeal

Before heading to court, you'll need to decide which part or parts of the divorce judgment you plan to appeal. It's very unlikely that you would try to appeal the entire judgment.

Filing a Notice of Appeal

To officially begin your appeal, you'll have to file a notice of appeal within the deadline in your state. Many states require you to file the notice of appeal in both the trial court and the court of appeals. After filing the notice, you'll need to serve your ex (or your ex's lawyers, if any) with a copy of the document.

If you don't follow all of the procedural rules, the court might dismiss your appeal and not allow you to refile.

Preparing the Record

The next step is to prepare the record of appeal. This usually includes:

• the trial transcript—a word-for-word written version of what was said during the divorce trial, and
• the case record, which includes all of the official documents in your divorce case, such as the divorce petition, any motions, and exhibits produced at trial or attached to other filed documents.

You'll need to pay to have the trial transcript prepared—which can be expensive.

As discussed above, you're not allowed to include any new evidence in the record of appeal that you had access to or knew about at the time of your trial but did not present to the trial court.

The Appellate Brief

The appellate brief is the written document that lays out your arguments and legal support for those arguments. Writing the brief is the most labor-intensive and complex part of the appeals process, and it takes specialized legal expertise to do it properly. Many attorneys who handle divorces won't write appellate briefs. Instead, they'll refer the case to another attorney who specializes in appeals.

Typically, your ex will file a brief in response to your brief, after which you may file a reply brief that addresses issues your ex's brief raised.

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 an opportunity for both sides to present their arguments orally to the panel of judges. Some courts schedule all appeals cases for oral argument. Others schedule it by request of the parties or the judge.

Appeals courts usually limit the amount of time for each party's oral argument to 15 minutes or less. Judges will often ask questions. The whole process usually takes less than an hour.

The Court's Decision

Appellate courts usually 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. This means the appeal was unsuccessful, and the trial court's order remains effective as written.
• Reverse the trial court's order and remand. This means the appeals court is sending the case back to the trial judge to reconsider. Typically, the appeals court will include instructions for how the judge should decide the issue on remand.
• Reverse and modify the trial court's order or issue a new order. If the appeals court believes the trial judge made an error, it might issue an amended divorce judgment or otherwise change the trial judge's order so that it's in keeping with the law.

Most appeals courts send their decisions electronically. Both spouses (or more likely their attorneys) will receive a notification to log on to the court's filing system to read the decision.

Is Appealing Your Divorce the Best Option?

You should know that it's difficult to win an appeal. 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 act quickly and hire a specially trained appellate lawyer. Of course, that means paying attorneys' fees and making your divorce even more expensive.

If you're unhappy with your divorce judgment, there are other options besides an appeal:

• If you discover a mistake in your divorce decree, you and your ex may agree to amend it without going through the appeals process. The specific rules may vary from state to state, but both spouses will generally need to sign and submit the amendment to the court for approval. Once the judge signs the amended decree, it will replace the previous one.
• You may only appeal a divorce judgment that was based on a judge's decision after a trial—not one based on your divorce settlement agreement. Still, you might be able to challenge an unfair divorce settlement—such as when you signed the agreement under threats or coercion, or when you learn that your spouse provided false information about something essential to the settlement (like the value of an asset).
• As discussed above, you might be able to ask the judge to set aside your divorce decree for limited reasons.
• You may request a modification of your divorce decree if there's been a substantial change in circumstances since the divorce was final.
• If your ex isn't following an order in your divorce judgment, you can go back to the trial court to enforce the order—or you can ask your local child support agency for help enforcing child support.

If you're hoping to change some part of your divorce judgment, you should consult with a lawyer before you take any legal steps. An experienced family law attorney can give you an honest evaluation of your chances of success with an appeal, as well as other options for getting the results you want.