Appealing a New Jersey Divorce Judgment
Appealing Divorce Judgments in New Jersey
Less than 10% of divorces are contested, and divorce attorneys generally recommend avoiding a litigated divorce if possible. A primary reason for this advice is that the spouses in a contested divorce relinquish control and must adhere to the decisions of the judge. That said, you do have the option to appeal a final judgment of divorce, which is otherwise known as a divorce judgment or divorce decree.
Contested vs. Uncontested Divorce
Most divorces in New Jersey and throughout the country are uncontested. These no-fault divorces require a marital settlement agreement, which is often achieved through collaboration, mediation, private negotiations, or arbitration. Once an uncontested divorce has been finalized, the former spouses cannot appeal the divorce decree although they can file a motion to modify it. A contested or litigated divorce occurs when one or both of the spouses challenge the grounds for the divorce, such as because they cannot agree on terms. Such divorces can be appealed through the judicial system.
What Is a Divorce Appeal and When Is It Needed?
A divorce appeal is a court process through which a party petitions a superior court to reconsider a final divorce decree made by a lower court. It is important to note that an appeal is not a do-over as in a second opportunity to present a case but rather an opportunity to have a case reviewed for possible errors. These can be errors made by a judge or other aspects of the court system or by the other party. A divorce appeal does not include a trial but often will include oral arguments made by both parties.
Does a Divorce Decree Remain In Force During an Appeal?
A divorce decree is active and enforceable as soon as the judge finalizes the court order. It is the sole discretion of the superior court as to whether to suspend the previous ruling during the appeal.
Grounds for a Divorce Appeal
There are no specific requirements to be allowed to file a motion for an appeal. Yet, if you do not have appropriate grounds for the appeal, then the court may quickly dismiss your motion and not even fully reconsider the case. There are technical grounds, such as the court making a mistake, but such appeals are highly unusual. Most appeals have to do with the discovery of new information. A former spouse cannot appeal on the grounds of new information that could have previously been discovered. They can, however, file on the grounds of new facts that could not otherwise be discovered during the original proceedings or due to instances of fraud or concealment.
What Can Be Appealed
A former spouse can appeal any aspect of a divorce decree as a matter of right. However, it must be an issue or a set of issues that a lower court has considered and made a ruling on. It is typically not possible to raise an issue for the first time. There are exceptions. As an example, if a post-decree revelation of hidden assets brought a new issue to light, then the superior court likely would consider it.
The Timing of an Appeal
In New Jersey, you have 45 days to file an appeal of the trial judge’s decision. Note that there are scenarios where you have less time, such as if the appeal has to do with a technicality. Thus, it is recommended that you discuss an appeal with your divorce attorney as soon as possible. An appellate decision will generally be issued within 30 to 90 days of the oral arguments having been made. There is no set timeline, however, and a complex appeal could take a year or even longer.
Do You Need an Attorney to File an Appeal?
You do not need legal representation to file an appeal. Nevertheless, it is highly recommended that you retain the services of an attorney who has specific experience with divorce appeals. It is a complex process, and any mistakes can result in your appeal not being considered. You must adhere to court rules at all times. It is also important to know what you can expect of clerks or other court staff personnel. They can provide you information about your case and explain court processes, but they cannot provide any legal advice or guidance.
How to File a Divorce Appeal
In New Jersey, the first step is to file a notice of appeal with the Appellate Division of the Superior Court. This is a court document that advises the court of your intent and begins the time period in which you have to file a brief. You must then request a transcript from the Appellate Division as having an official transcript is a requirement of having your appeal considered. Then, you must complete a case information statement, which will include the brief and other relevant information. It is highly encouraged to have a lawyer complete this statement as any mistakes can lead to the appeal not being considered.
Filing Fees and Fee Waivers
There are court fees associated with filing a divorce appeal. In New Jersey, you must pay $250 as the cost of filing the notice of appeal. You then have 30 days in which to submit a $300 fee to the Appellate Division. If you win your appeal, the $300 fee will be refunded to you. If you lose your appeal, it may be refunded to you, but some or all of it may be used to cover court and settlement costs.
If you have received a fee waiver for your divorce, you can submit it in lieu of the $300 fee along with a signed letter confirming that your income has not changed since the divorce was filed. Even if you did not receive a fee waiver for your divorce, you can request one for your appeal. Whether you get a waiver is an income-based decision. Your household income must be at or below 150% of the current poverty level that is based upon the number of people you have in your household, and you must not have more than $2,500 in liquid assets.
The appellate brief is a written document that outlines your arguments as to why the court should uphold your appeal. You are expected to make copies of that document and all other documents submitted to the Appellate Division. Keep copies for yourself, and you must send copies to your former spouse, the judge who made the ruling, and the office of the court where your divorce trial was heard.
Motion to Modify a Divorce Decree
It is much more common to file a motion to modify a divorce decree than it is to file a motion to appeal, and this is an alternative that those contemplating an appeal will want to consider. A request to modify is a simpler and less expensive and time-consuming process that may allow you to change aspects of a decree, such as alimony, child support, or parenting time.
Legal Assistance Appealing Your Divorce Decree in New Jersey
If you are considering appealing a divorce decree, the Law Offices of Kelly Berton Rocco is here to help. Our law firm has extensive experience with marital legal issues, including appeals and motions. To meet with a divorce attorney to discuss your case, call our Hackensack office at 201-343-0078 or contact us online.