When you are in the middle of your divorce case, it is natural to want to appeal if the judge rules against you – especially if the issue involved relates to something as personal and important to you as your money or your children. But, if you stop for a moment and ask, "What are the odds for success on appeal?," the answer you will get can usually be summed up in two words: "Not Good."
Why Appealing a Judge’s Order is Difficult
1. Not all court orders can be appealed. If you have gone through an entire divorce trial, and you don’t like the judge’s final judgment, you can appeal from that order. But, as anyone who has been through a divorce trial can tell you, the final judgment is usually just the last in a long line of court orders in your case.
Before you even get to trial, you usually go through several smaller hearings on a variety of different motions. These hearings can involve anything from temporary support (i.e. support for a spouse and/or children until the case is concluded), temporary custody and visitation, discovery, and various other issues. Those "interim" orders are usually not final orders and can not be appealed.
2. A big part of divorce law involves judicial discretion. "Judicial discretion" is a fancy way of saying that the judge has a lot of leeway in which to decide certain issues. The law sets the parameters within which the judge can make decisions. As long as the judge stays within those parameters, his/her orders will not be overturned on appeal. (Of course, if the judge doesn’t follow the law, or applies it improperly, an Appellate Court can overturn the erroneous order.) The bottom line, though, is that not every decision that you think is "wrong" will get overturned on appeal.
3. The role of an Appellate Court is very limited. Just because you didn’t like your trial judge’s ruling, that does not mean you get to present your case all over again on appeal. Appellate Courts can only review issues that were raised at trial. They are usually limited to considering those issues based upon the evidence that was presented at trial. You can not introduce new evidence or new issues to the court on appeal. What’s more, since the trial judge is the only one who gets to see and hear witnesses testify, Appellate Courts usually defer to the trial judge’s opinions on such things like a witness’ credibility, and the weight to be given to the witness’ testimony.
3 Good Reasons Not to Appeal a Judge’s Order
1. Appeals cost a lot of money. Most lawyers I know won’t even talk to a client about an appeal unless that client can give them at least a $10,000 retainer... and the retainer is just the start. Appeals are notoriously time consuming. To pursue an appeal, a lawyer has to get and review the entire court file and trial transcript. S/he has to perform a considerable amount of legal research. Then s/he has to write a lengthy appellate brief, and prepare for and argue the case orally before the Appellate Court. All of that costs money.
2. Appeals take a lot of time. Not only does it take time for both lawyers to do all of the work necessary in an appeal (usually this part takes many, many months), but it also takes the Appellate Court a considerable amount of time to review all of the briefs, schedule and hold oral arguments, and then issue a ruling. While the length of time it takes to get a case decided on appeal varies from place to place around the country, in most cases that "time" is usually measured in years, not months.
3. Appeals prolong your litigation. Appealing your case keeps it alive. It keeps you mired in conflict and uncertainty. It keeps you and your spouse locking horns as adversaries, rather than allowing you to start to recover and heal. In short, it keeps you focused on the misery of the past, rather than allowing you to move forward into the hope and new life of your future.
What if the Judge Was Really Wrong?
Sometimes, judges make mistakes. Sometimes, judges’ orders are wrong. Sometimes, you feel that the judge’s order was so far off base in your case, that you simply have to appeal. What do you do then?
As long as you have the time, the money, and the energy to make your case, you appeal.
Appeals may not always be easy to win, but they are not always lost either. If you feel strongly that the trial judge’s order in your case was wrong, you may want to consider appealing. But, before you do, make sure you go into the appellate process with your eyes wide open.
Make sure you talk to at least one lawyer (and preferably two) about your chances of success before you decide to appeal. Get a realistic estimate of the time and cost involved, then weigh that time and cost against what you stand to gain if you are successful on appeal.
You also want to make sure that you understand what "success on appeal" really means. Oftentimes, when you "win" and appeal, the Appellate Court reverses the case and sends it back to the trial judge for further proceedings. That means that winning the appeal may not end your case.
The Final Analysis
Deciding whether to appeal your case is complicated. What’s worse is that appeals must usually be filed very quickly after a judgment is entered. That means you don’t have a lot of time to muster your resources and make a decision.
If, after weighing the pros and cons, you feel that appealing a judge’s decision makes sense in your case, by all means, do it. But, know that appealing a case is just as risky as trying it. You are still putting your fate, and the fate of your family, in the hands of strangers. How will it turn out? In true lawyer fashion, I will tell you honestly: it depends.
Do you know how to navigate the divorce process?
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