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.
Appealing Your Divorce Judgment
Once the divorce is completed and a judgment entered, either or both spouses can appeal a trial court judge’s decision to a higher (“appellate” or “appeals”) court. Because of the deference given to the original judge, it is unusual, but not impossible, for an appeals court to overturn a judge’s decision in a divorce case. Settlement agreements usually cannot be overturned on appeal if both spouses agreed to the terms of the settlement, unless there were problems with how the agreement was reached or other enforceability issues.
Notice of Appeal
An appeal is limited to some significant error that occurred during trial. If you believe there was an error of fact or law or an abuse of discretion by the judge, then the appellate process begins with a notice of appeal to the other side. There are strict procedures and deadlines about filing and serving such a notice. Failure to follow your state and county procedures could result in losing your right to an appeal.
The Record on Appeal
Once the notice of appeal has been filed with the court and served on all parties, the Record on Appeal must be prepared. The Record consists of the court reporter’s trial transcript and the clerk’s record.
The clerk’s record is all of the documents, papers, pleadings, and other written material that were filed with the court, plus any exhibits and documents that were introduced at trial.
The court reporter’s transcript is a typewritten booklet that contains everything that was said in court in the presence of a court reporter. Typically, all of the testimony by witnesses, attorney arguments, and statements by the judge or parties.
The Appellate Brief
The main form of argument on appeal is the written appellate “brief,” filed by counsel for each party. A brief is a document containing a legal argument, supported with reference to applicable case law, statutes, the reporter’s transcript, and documents in the clerk’s record. The lawyers for the parties submit their briefs to the appeals court and they may be granted the opportunity to make oral arguments.
If an oral argument is granted, it will typically be for no more than 15 or 30 minutes for each side to present its argument. No witnesses will be presented and no new evidence will be considered.
The Appellate Decision
Once the appellate court has the Record on Appeal, the Appellate Brief, and has taken any oral argument that it desires, it will make a ruling. The time varies from state to state, but thirty to sixty days after the court has a complete record is typical for a decision to be reached.
The appellate decision most likely will uphold the trial court’s decision. However, if they don’t do so, the case will be sent back to the trial court to either modify the decision or to conduct a new trial.
Motions to Modify the 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 child custody can be done, but it is difficult. Courts assume that the original custody arrangements were correct and they are reluctant to make custody 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.