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Appeals and Motions To Modify Divorce Decree

Appeals and Motions To Modify Divorce Decree

The appeals process is expensive and may not provide the results you are seeking. However, a modification is far less expensive and is the best way to change certain aspects of the divorce decree — including property division, spousal support (alimony), child support, child custody arrangements, and visitation.

A request for a change is made by filing a “motion to modify” the divorce decree or judgment. This motion is usually filed with the same court where the divorce judgment was issued. Many states provide forms, check with your local state and county courts to see if they are available.
When drafting your motion to modify you must demonstrate changed circumstances that make a change warranted. For instance, loss of a job or a promotion can be grounds for modifying spousal or child support. Each state has its own rules about the modification process and the proof that is necessary for the modification to succeed.

Modifying divorce decree can be done, but it is difficult. Courts assume that the original arrangements were correct and they are reluctant to make changes. However, they will if it is in the best interest of the child and there are changed circumstance that make a change necessary.
Once the petition for modification has been completed, it will need to be filed with the court and served on your spouse. The court will schedule a hearing date and you will be able to present your argument. If you and your spouse agree that a modification is necessary, you should attach their agreement to your petition and the court may make the modification without a court appearance.

Who May Appeal a Divorce Decree?

A divorce decree refers to the court’s final ruling and judgment order. Depending on the state, a divorce decree may also be called a final order or a final judgment. This order is what makes the termination of a marriage official.

Each divorce decree will be different based on the needs of each divorcing couple, but the general purpose of the decree is to summarize the rights and duties of each party in connection with the divorce. The divorce decree contains specific conclusions for issues such as property distribution, child custody and support, and alimony payments.

Divorce decrees are important due to the fact that the divorce process is not complete until one is issued. As such, the party’s status as married or divorced will not be finalized until the divorce decree is completed and issued. Divorce proceedings that are not yet completed may have effects on different areas of life. Some examples of this may include:

• Debt;
• Property possession;
• Taxes;
• Employment benefits; and
• Other legal rights.
• The divorce decree also provides basic information, such as:
• The names of the parties;
• The case number;
• The date that the divorce becomes effective; and
• The terms that the parties may have agreed upon.

In some cases, a divorce decree will outline other provisions. Examples of such provisions may include the debts that the parties have incurred over the course of their marriage, as well as their financial responsibilities after the divorce. A record of the final decree of divorce is maintained in the vital records office of the courthouse in the county in which the divorce occurred. These may be obtained if an extra copy is needed.

Appealing a divorce judgment is an action in which one party, subject to a final divorce decree, seeks to change or correct that final judgment. Any party to the divorce may appeal the decree, so long as doing so is not prohibited by state statute. Depending on the state, both parties can file an appeal to the decree at the same time.

Because the appellate system provides much deference to the original judge. However, it is not impossible. If both spouses agree to the terms of the settlement, the final settlement cannot be overturned on appeal unless there were issues regarding how the agreement came about.

What Are Valid Grounds for Appealing a Divorce Decree?

There are many reasons to contest a divorce, although not all are legally valid. The most common claim for appealing a divorce decree is that the court made some sort of mistake regarding the law in the final judgment. The party filing the appeal must show that the judge made an error or mistake in applying or interpreting the law regarding the circumstances of the case. Generally speaking, a party cannot simply challenge facts that were already established over the course of the original proceeding. If the facts have been established at the lower court, the appellate court will accept those as the facts of the case, unless something about those facts reflects the mistake that the court made when applying the law.

An example of this would be if the court concluded that one spouse’s income was $50,000 a year. This fact could not be contested on appeal, unless it can be proven that the court applied the wrong legal standard for calculating income. If the fact is the result of the wrong legal standard being applied, then this could be possibly challenged on appeal.

Other common grounds that could support an appeal of the divorce decree might include: Instances of fraud committed by the opposing party in connection with the court proceedings; Hidden assets or concealment of other important information by the other party; and Discovery of new facts that could not otherwise be discovered during the original proceedings.

While these are all legitimate instances in which an appeal might stand, the appeal is most likely to be successful if it is based on an error in law committed by the court. It is important to note that there are numerous different circumstances in which one party may seek to modify a divorce decree.
For example, in the case of spousal support, when the party receiving spousal support gets remarried or gains employment, the party paying the support may seek to modify the spousal support order contained in the final decree.

After a divorce becomes final whether through settlement agreement or after a court decision — either spouse may still have an opportunity to challenge certain decisions made by the court. One or both spouses can seek to appeal or modify their divorce decree. The following is an overview of the appeals and modification processes.

How a Divorce Appeal Works

Appealing your divorce is not a second shot at the divorce trial. You are not 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 appeals attorney make. If you failed to present evidence at the trial in the lower court, you will not be able to present it to the appeals court.

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

1. Decide What to Appeal

Before heading to court, you will need to decide whether to appeal all or part of your divorce judgment. Most of the time, you can’t use an appeal to reverse the entire divorce—rather, you would use an appeal to challenge certain terms of the divorce. For example, you might want to appeal only the part of the divorce decree dealing with property division, or maybe you want to appeal both property division and alimony (spousal support).

Overturning a trial judge’s decision doesn’t come easily: Courts generally grant appeals only when you can demonstrate that the trial court

• Abused its discretion, for example by obviously ignoring evidence, or
• Made a legal error, for example by misapplying or misinterpreting the law.
Because the law gives trial judges a lot of discretion in evaluating and deciding cases, appellate courts are reluctant to overturn a trial court’s decision unless it’s clearly wrong—they will not overturn a decision just because it seems unfair.

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

• You’ve uncovered new facts that you couldn’t have known about or discovered during the divorce proceedings
• Your ex-spouse lied about something, or
• Your ex-spouse hid assets or income.

Most of the time, it’s not enough to show that you didn’t know about some fact or asset during the divorce proceedings. You must also show that had the trial court known of it, it would have had a “material” effect on the outcome—in other words, that the outcome probably would’ve been different. For example, if you find out after the divorce decree is entered that your ex-spouse lied about having an affair, this fact (although maddening) probably wouldn’t have had an effect on the judge’s decision—especially if your divorce was “no fault.” If the court of appeals agrees that the new fact is material, it might remand your case so the trial court can consider the new information.

For most people, consulting with an attorney before filing a divorce appeal is well worth the effort: If you do not have legal grounds (reason) for your appeal, you will waste a lot of time, money, and effort. A lawyer who specializes in divorce can give you an honest evaluation of your case and chances of success in an appeal.

2. File a Notice of Appeal

To officially begin your appeal, you will need to file a “notice of appeal.” The notice of appeal lets the courts, your ex-spouse, and any lawyers involved know that you’re appealing. Many states require you to file the notice of appeal in both the trial court and the court of appeals.

Most appeals courts have very firm deadlines by which you must file your notice of appeal. Often, these deadlines are short—for example, your court might require you to file a notice of appeal within 30 days of when the judge signed your divorce decree. After filing the notice, you will need to serve copies of it on your ex-spouse (or your ex’s lawyers, if any). If you don’t follow the procedural rules, the court might dismiss your appeal and not allow you to refile.

3. Prepare the Record

The next step in the appeal process is for you and your lawyer to prepare the “record of appeal.” This usually includes the:

Trial transcript. The trial transcript is a word-for-word written version of what was said during the divorce trial. You will need to pay for a copy of the transcript, which can be expensive.
Case record. The case record includes all of your divorce case documents, like pleadings (documents you filed with the court) and exhibits (evidence such as documents and photographs produced at trial or attached to pleadings).

You can’t include any new evidence in the record of appeal that you had access to or knew of at trial but did not present to the trial court.

4. Draft and File the Appellate Brief

Perhaps the most labor-intensive aspect of a divorce appeal is creating the appellate brief. A “brief” is a written document that lays out the writer’s legal arguments and support for the arguments. Every court of appeals has its own detailed instructions on how to format appellate briefs. For example, many courts require briefs to be written in large, double-spaced font, and include an appendix so the court can refer to the different sections of the brief. Most also require you to attach copies of any laws and court cases cited.

Drafting appellate briefs is so complex that many attorneys won’t write them—rather, they will refer clients out to attorneys who specialize in appeals and appellate brief writing.

Both spouses must submit a brief to the court. After the briefs are submitted, the court will either notify the parties of a date for oral arguments or issue a decision.

5. Attend the 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 the opportunity for the parties to orally present their arguments to the panel of judges in a process called “oral argument.” Some courts schedule all appeals cases for oral argument. Others schedule oral argument only when a party requests it or when the judges believe it would be helpful in making their decision. If you think that you would like to have an oral argument, make sure you find out the process for securing a time and date.

The court usually caps the amount of time for each party’s oral argument at 15 minutes or less. The court might allow the parties to reserve a portion of their time to respond to the other side’s argument, and judges often ask the participants questions. The whole process usually takes less than an hour. After the parties finish their oral arguments, the judges close the hearing and take the case under advisement—meaning they will not issue an immediate decision.

6. Receive the Court’s Decision

In general, appellate courts 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. A decision affirming the trial court means that the appeal was unsuccessful and the trial court’s order remains binding as written.

Reverse the trial court’s order. When an appeals court reverses the trial court’s order, the appeal has been successful. The appeals court’s decision will specify what will happen next—for example, whether the case is remanded (see below) to the trial court or a new or modified order is entered.
Remand the case to the trial court. To “remand” the case means that the appeals court wants the trial court to reconsider the case. Most often, when an appellate court reverses the trial court’s decision, it remands the case with instructions for how the trial court should decide the matter.

Modify the trial court’s order. In cases where the appeals court believes the trial court made an error, the appeals court might issue an amended judgment of divorce or otherwise modify the trial court’s order so that it is in keeping with the law.

Most appeals courts send their decisions electronically—either you or your attorney (along with your ex-spouse’s attorney) will receive a notification to log on to the court’s filing system to read the decision. Review it carefully to see if you need to take further action.

Are There Different Kinds of Appeals for Divorce Decrees?

There are different kinds of appeals for divorce decrees. Many of them are only granted according to the judge’s discretion. Some ways that you can challenge the decree include:

Appeal: This is the standard process for challenging a divorce decree, and is also one of the most time-consuming. Generally speaking, you have thirty days in which to file an appeal after the final judgment has been issued. The appeal must be based on the court’s mistake of law; in general, no new facts can be introduced on appeal. The appellate process maintains strict procedures and deadlines about filing the notice of appeal. Failure to follow your state and county procedures, or missing that deadline, may forfeit your right to appeal;

Motion for Rehearing: A motion for rehearing is a highly specific type of procedure that must be filed almost immediately after the judgment is issued. You do not have an absolute right to have the case reheard, as the request must be granted by the judge; and

Motion for Relief from Judgment: A motion for relief from judgment is only granted in limited circumstances. An example of such circumstances would be if the other party committed fraud or concealed assets. Generally speaking, this motion may be granted only in cases in which something serious has occurred that affects the fairness of the decree. The motion for relief from judgment generally has a longer deadline for filing than that of the motion for rehearing.

If you wish to appeal your divorce decree, it is imperative that you pay attention to the deadlines. All of these potential procedures have very strict deadlines. In some cases, this deadline is ten days or less after the final judgment is issued. Missing the deadline may mean that you miss your chance to appeal the decree.

Every case is different, of course; however, the appeal process is not generally a quick one. Sometimes the appeal can take as long as two years. This is especially true when the case is “remanded” to a lower court. What this means is that the case is sent back to the lower court to reconsider the issues.

The appeal process can also be expensive, and may not provide the results you are seeking. The chances of winning a divorce appeal are low. If you wish to appeal your divorce decree, you may want to take into consideration how the overall length of the process will affect other important life decisions.
To reiterate, appealing a divorce decree is often limited to errors based on the lower court’s legal ruling. Appeals must be specifically requested, as they are not automatically granted. Appeals are subject to very strict filing deadlines, and only issues of law can be appealed.

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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

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