If you are unhappy with a court decision after a divorce trial or important divorce hearing, or if you have received a default judgment of divorce, you may be wondering if there is anything you can do about the result.
You do have some options, but they are limited. There are also time restrictions, so if the decision seems incorrect or extremely unfair, don’t delay in getting attorney advice and following any recommendations as quickly as possible.
If you believe that a judge made a major mistake that substantially affected your rights, you can bring a motion asking for reconsideration of the decision. Either spouse in a New Jersey divorce case can serve a motion for reconsideration on the other spouse within 20 days after service of a final judgment. The motion must specifically describe the possible mistake of fact or law.
If one spouse discovers new evidence that wasn’t originally available; discovers the existence of fraud, excusable neglect, or mistake; or discovers that the other spouse made a significant misrepresentation or engaged in some significant misconduct (such as lying about or hiding major assets, for example), a judge can set aside a judgment even after expiration of the 20-day period.
There is ordinarily a one year time limit on requesting this kind of relief, but in rare cases where extremely unfair results would otherwise stand, courts can set aside judgments even after one year. The judge will look at whether the delay in bringing the motion was reasonable, and whether the spouse seeking relief was responsible for the original result in any way.
Courts generally view default judgments somewhat more liberally than judgments entered after a court appearance. If the court entered a default judgment against you, and you and your spouse did not have a signed settlement agreement, you will still have to provide a good reason for your previous failure to appear, but the court may be more likely to set aside the default and give you a chance to present evidence in your case.
Under some circumstances you can also seek appellate review of a trial, hearing, or motion in a divorce case. A party to a New Jersey divorce has 45 days following entry of a final judgment to file a notice of appeal.
Appellate review in family law cases is uncommon, however. Because trial courts have the final word when it comes to deciding between different versions of the facts, divorce appeals rarely succeed. Appeals are also expensive. An attorney normally needs to review an entire case file and transcript before even offering an opinion regarding the likelihood of success. Attorney fees for preparation of appellate briefs, as well as fees for transcripts and court filings, can be quite high. If you lose the appeal, you could end up paying your former spouse’s attorney’s fees as well.
An appeal might be justified if a trial court:
“Abuse of discretion” means the court reached a decision that was completely unsupported by evidence or was contrary to applicable law. If facts conflict, the trial court is responsible for deciding which version is correct. As long as there is some believable support for the version the trial court accepted, an appellate court won’t change the decision.
If one of the above circumstances affected the final result in your case, the appellate court can reverse the trial court’s decision or direct the court to take further action, such as making additional findings of fact or conducting a hearing on a specific issue. In most cases, however, the appellate court simply affirms the decision.
Courts generally allow appeals only after final orders or judgments. An order or judgment in divorce is final if it includes a decision on all issues between the spouses.
In an emergency situation, one spouse can bring a motion asking the court to hear an appeal while the case is still ongoing; this is called an “interlocutory” appeal. A situation generally qualifies as an emergency only if irreparable harm is likely to result if the appeal is delayed.
In a few situations, the right to an interlocutory appeal is automatic. For example, if you receive a final decision on child custody, you can appeal this immediately, regardless of the status of the rest of your case. A court granting an interlocutory appeal will usually also order a “stay” or suspension of the trial court proceedings until after the appeal.
Appeals and motions for reconsideration are not the same thing as motions for modification in divorce. Some aspects of a divorce judgment, including child custody and visitation orders, child support orders, and sometimes spousal support orders, remain open to modification if circumstances change substantially following the original judgment.
If you need additional information, see our New Jersey Divorce and Family Law page, or contact an attorney for advice.