Should You Appeal?

After the judge rules on your motion, look at the whole picture to decide whether to appeal. If you got most of what you wanted from your motion, maybe you should pick up your marbles and go home, because appeals courts are unpredictable. Appeal only if the trial court missed a very big issue and your lawyer says you have a good chance to prevail. Otherwise, it's too expensive in time, money, and emotions to prolong your divorce by another year or so.

Rules of Appellate Procedure

The rules of appellate procedure give you a specific time limit to appeal a judgment. You'll need to decide fairly quickly whether to appeal because you'll need to accomplish a lot in the thirty to ninety days allotted. You need to order a trial transcript from the court reporter, which, if the trial was long, will take awhile for the court reporter to type up — and you're probably not the only case wanting one. Your lawyer needs to put exhibits into order and write an appellate brief. And you need to submit certain papers in a specific format dictated by your state's rules of appellate procedure. Different states have different time periods for “perfecting” an appeal. Perfecting is the term used to describe that point in time which the appellant has submitted all the necessary paperwork to the court.

While you should always consider negotiation, don't give in to issues you feel strongly about just to be done with it. Spending so much time in the courts may be a tactic your ex-spouse is using to wear you down. Maintain focus on your objectives and think through negotiations before signing on the dotted line.

If you're the appellant, you will prepare all your papers, submit them to the appellate court, and serve them on the other side. The other side, called the respondent, has a chance to respond. When all the paperwork (yours and the other side's) has been submitted to the appellate court, the clerk of that court will schedule oral argument. The lawyers then go to the court to make spoken arguments and answer the appellate judge's questions about their positions. You're permitted to attend oral argument, but you won't be permitted to say anything.

The appeals court will issue a decision within six months or so. While you're waiting to get on with your life, you again may consider making a settlement proposal. Negotiating a settlement is always an alternative.

Appeals Court Outcomes

There are three possible outcomes from an appeal. The appeals court may affirm the trial court's decision, which means that, unless you appeal to your highest state court, the trial court decision stands. It may affirm part of the decision and reverse another part, issuing its own decision where it reverses the trial court. If this happens, you can appeal to the highest appellate court of your state. Finally, the appeals court can reverse and remand (send back to court) all or part of the trial court's decision. When it remands a portion of the trial court's decision, it sends it back to the trial court for another hearing. It would be possible to have that hearing, get the trial court's decision, and appeal again. And again. And again.

The various levels of appellate courts have different rules regarding which cases they will hear on appeal. There are usually special rules that govern whether your case is eligible to be heard in the highest court in your state. Many divorces are not eligible. Your attorney will know the rules of your state and whether an appeal is possible.

When a case is appealed to the highest court, the issue presented is: Did the appeals court make a mistake? The high court can affirm the appeals court or reverse it. It also can send the case back to the trial court. In some states, the highest court can refuse to hear the case in certain situations. It probably would be possible to spend the rest of your adult life in the courts if you had enough money and nothing else to do.

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