Appealing a divorce decree
Step-by-step Guide to Appealing a Divorce Decree
Whether you have made a settlement agreement with your spouse or are going through a courtroom battle, all divorces are finalized when a judge approves and signs a divorce decree. In 2020, more than 630,000 divorces were made official with this type of court order. Even though a divorce decree can be appealed, there are time restrictions and limited options for you to contend with.
What Is a Divorce Decree?
A divorce decree is proof that a marriage has come to an end. All terms of the divorce are listed in this document, which can include such issues as:
- Child support
- Child custody
- Marital property division
- Debt division
This document is an official court order, which means that both parties must abide by the terms and enforce the terms if someone doesn’t comply with the order. If one spouse is going back to their former name, this information can be listed in the divorce decree and may be used as proof of the name change.
Each state differs somewhat in regards to the details and information included in a divorce decree. For instance, New York and California provide residents with simple fill-in-the-blank forms.
Almost all divorce decrees include the identifying information for each spouse and any minor children, the court’s telephone number and address, the case number, the end date for the marriage, the names of any attorneys, and a declaration that the divorce has been finalized.
This document must be signed by each spouse as well as their attorneys and the judge. The court clerk usually stamps the document with the official court seal. When the judge has signed the divorce decree, it becomes valid. Afterward, you can obtain a certified copy of the decree at the court clerk’s office.
Making a Motion to Set Aside or Reconsider Judgment
You may believe that the judge in your case made a notable mistake with the divorce decree that negatively affected your rights. You can respond by filing a motion that asks the judge to reconsider their decision. In New Jersey, each spouse is able to serve a motion to the other spouse before 20 days have passed following the signing of the divorce decree. This motion needs to include details of a mistake that was made.
There are also instances when judges can set aside the court order after the 20-day period has ended, which may occur if you find evidence of:
- Excusable neglect
- Significant misrepresentation by a spouse
- Misconduct by spouse
- Existence of fraud
There is usually a time limit of one year to seek relief for these specific issues. If results are found to be extremely unfair, a judge can set aside their judgment after the one-year deadline. The judge in question will consider if the delay in filing the motion is reasonable and if the spouse who’s seeking relief is responsible for the initial judgment.
New Jersey Appeals Process
When someone would rather have the entire divorce decree appealed, they may be able to obtain an appellate review of a motion, trial, or hearing for their divorce case. The parties in the divorce have 45 days from the final judgment to submit an appeal notice.
Keep in mind that an appellate review of divorce decrees doesn’t occur that often. Trial courts are given the final say over each spouse’s determination of the facts, which is why appeals rarely ever succeed. This process can also be costly. A New Jersey divorce lawyer will need to look through the court transcript as well as the case file before an opinion is offered on the likelihood that the appeal will be successful.
The fees that might apply for this type of case include fees for court filings, transcripts, and the preparation of necessary appellate briefs. If the appeal is lost, the party who filed for the appeal could be required to pay for their ex-spouse’s attorney fees.
The reasons why an appeal might be justified include if the trial court didn’t make proper findings of fact, didn’t resolve the notable disputes in the case, didn’t correctly apply New Jersey law, didn’t conduct a complete hearing, or abused its discretion.
Abuse of discretion occurs if the court makes a decision that is wholly unsupported by the available evidence or doesn’t adhere to New Jersey law. If there is at least some evidence that the trial court’s interpretation of the facts in the divorce is correct, the appellate court is unlikely to alter its decision.
If the appellate court finds evidence of excusable neglect or fraud, it can reverse the decision that the trial court has made or tell the court to remedy the issue. Potential remedies include conducting a new hearing for a specific issue or making extra findings of fact. It’s common for appellate courts to affirm the trial court’s decision.
Appeals are only allowed after a final judgment. If there’s an emergency situation during the initial divorce proceedings, a spouse can file a motion to request that the court hears their appeal while the case is ongoing. This process is known as an “interlocutory appeal.” A spouse can only qualify for this appeal if irreparable is considered to be likely before the divorce is finalized.
There are times when a party will automatically have the right to this type of appeal. For instance, a final child custody decision can immediately be appealed even if the rest of the case is still ongoing. If the appeal is granted, the court may order that the trial court proceedings be suspended until the appeal is finished.
Potential Modifications to Divorce Decree
Motions for reconsideration and appeals aren’t the same as modification motions. Certain decisions in a divorce decree are open to modification in the event that circumstances change. These decisions include:
- Child support orders
- Child custody orders
- Child visitation orders
- Alimony orders
There are many reasons why a motion for modification may be requested, the primary of which is that one party loses their job and is no longer able to make alimony payments or child support payments. Other reasons for a modification request include health problems or the child’s needs changing.
An experienced divorce attorney can explain this process to you and help you identify if this motion suits your case. If a modification is granted, it’s more likely that the child support or alimony amount will be reduced instead of being taken away completely.
Obtaining Help from a New Jersey Divorce Lawyer
Appeals differ substantially from trials. During a trial for divorce, lawyers must be able to research all aspects of a case and statutory law to make sure that legal arguments are sound. During the appeals process, these factors are even more important since appellate attorneys are tasked with documenting every fact and paying close attention to detail.
Appellate judges will expect the attorneys who argue the appeal to articulate every aspect of case law that legitimizes the appeal. If you believe that filing an appeal is necessary, the New Jersey divorce lawyer you hire will handle all of the proceedings for you while also making sure that the necessary documentation is filed correctly.
Divorce proceedings are oftentimes lengthy and complicated. Even after the final divorce decree has been signed, one or both parties involved in the case may want to appeal the decision. If you believe that an appeal is the right option for you, call our New Jersey divorce lawyers today at (201) 343-0078 to request a consultation.