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Appeals: Are They Worth The Expense And Hassel?

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Published: 19Aug2009
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If you end up in court over your divorce, the judge will decide the issues you and your spouse are still disputing. If you are unhappy with the decree, you may be able to "appeal" the court's order. If you are considering an appeal, there are a few things you need to bear in mind.

Appeals are expensive. The first thing you will need to do is notify the trial court of your intention to appeal its order. You will have to pay a filing fee to the appellate court. Next, you will have to pay to have the evidence prepared, and to have the proceeding in the trial court "transcribed", which is a word for word typed document of everything that occurred at your final hearing. You will have to pay an attorney to read the transcript, and prepare a brief for the appellate court.

Next, your spouse has an opportunity to respond to your brief, and to set out any grievances he / she may have with the trial court decision. You and your attorney respond to this brief, and the case is finally submitted to the court.

Several months can elapse before you hear whether your appeal was successful. If the trial court is not "affirmed" by the appeals court, several things can happen. The trial judge can be ordered to amend his / her order to comply with the appeals' court's decision. The appeals court's decision could result in an entire new final hearing. If that happens, your divorce is still final, but the other issues are still up for grabs.

If your spouse agreed with the trial court, he / she can ask that your state's supreme Court overturn the appeals court. If the supreme court agrees with the trial court, it can overturn the appeals court. If it partially agrees with the appeals court, and partially agrees with the trial court, it can reverse the appeals court and send the case back to the trial court to have the judge correct that portion of it's original decree that the supreme court didn't like. If it agrees with the appeals court, and the appeals court affirmed the trial court, all remedies are exhausted, and the trial court's original decision still stands.

The supreme court can also refuse "certiary", which means it doesn't think the issues of the case are important or that its issues are so well settled by prior rulings that they don't require further action. In short, appeals are only for the rich, or at least the fairly well-to-do.

Even if you do decide to appeal, you should understand that the appeals court is very limited in the relief it can grant. Generally, if there was any evidence that supported the trial court's decision, it will be upheld. This means that if 20 witnesses say one thing, and 1 witness says another, the court is considered to have enough information to rule, even if it relies on the statements of the 1 witness. The trial court actually meets the parties and their witnesses, and is thus considered to be in a better position to judge the credibility of their statements. Thus, unless the trial court applies the wrong law, or applies the right law in the wrong way, it will be sustained by the higher courts.

Lucille Uttermohlen can guide you through the divorce thicket. She has been an attorney for 27 years, mainly specializing in family law matters. For more information on the divorce process, visit Lucille at http://www.couple-or-not.com or email Lucille@couple-or-not.com with your divorce questions.

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