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Blogs from February, 2022

A contested divorce can result in a drawn-out legal battle, where it’s not uncommon to see one (or both) sides unhappy with the final court-approved settlement. A natural reaction in these circumstances is to appeal the family court’s ruling. But what are the chances of winning a divorce appeal? What can you and your attorney do to improve the odds? And what does “winning” in these circumstances actually look like?

Setting Expectations in the Appeal Process

It’s important to remember what the appeals process is. It is not a new trial. It is not a chance to re-litigate everything you and your ex battled over in the original settlement. It is not even a chance, at least in most cases, to introduce new evidence.

An appeals court is only looking for errors in procedure or in the application of law. The appellate judge is not going to overrule the family court judge in matters where leeway is given to the court. Appellate judges will start with the presumption that the original ruling was correct. It’s the responsibility of the person filing the appeal, and their lawyer, to show why that presumption is incorrect.

You might be justifiably unhappy with how the family court ruled in making your ex the primary custodial parent for your children. The appellate judge might even agree with you. But if it’s only a matter of personal judgment, rather than an error in applying the law, you will not win your appeal.

All of which means it is important to have appropriate expectations for what can actually happen in the appeals process.

How to Appeal a Divorce Settlement in New Jersey

Once the family court has finalized its decisions on all aspects of your settlement, you have 45 days to file an appeal. In certain circumstances, you can even file your appeal as your original case is going on. It’s not uncommon for the different facets of a divorce case (alimony, child support, property division, custody & visitation, etc.) to be decided one at a time.

Perhaps your custody decision was made early in the case. You are convinced that not only was the ruling wrong, but that your children may be in actual danger because of it. You don’t believe you can wait for the rest of the trial to conclude, then wait 45 days on top of that.

In circumstances like these, there is the possibility for what’s called an interlocutory appeal. The specific decision you contest can be appealed while the rest of the case is still being decided. In matters of child custody, there is a right to an interlocutory appeal. In other matters, the prerequisite for filing this type of appeal is that there must be a reasonable chance of success (as perceived by the appellate court) and delay would cause serious harm.

The New Jersey Appellate Division is where appeals are heard in our state. The division has 32 judges, and it will likely be a panel of two or three judges that will hear your case. Briefs must be filed, with time given to your ex’s attorney to give a response. The court will hear oral arguments from both lawyers. The judges will also need to spend an extensive amount of time reviewing all the documents filed in the original court and the transcript of the trial.

When all is said and done, a successful appeal usually takes at least a year to complete.

Grounds for a Divorce Appeal in New Jersey

The reasons the Appellate Division will consider hearing an appeal start with the failure to apply the law correctly. It can also be that you believe the family court judge failed to resolve all disputes that were in question between you and your ex.

Perhaps you believe the hearing given to the evidence was insufficient. Let’s say you and your ex had a diverse stock portfolio, including investments from when you were both still single. There was considerable dispute over what portions of this portfolio were separate property (which belongs exclusively to the original owner) and what percentage was marital property (which must be equitably divided between the spouses).

As a part of making your case, you hired a forensic analyst to thoroughly study your portfolio and the arc at which it grew over the years. You believe you have a strong case to make for a greater share of the portfolio than might appear at first glance. Then, in your view, the judge gave only limited time to let your forensic analyst review the documents or did not give sufficient time to review them.

This is different from bringing new evidence or even asking for a different opinion. You are contesting that the process the family court judge used to reach their verdict was not appropriate to the complexity of the matter at hand.

Judges do get a certain amount of discretion in the distribution of property. New Jersey is one of 41 states that uses the principle of equitable distribution in property division. This means that the settlement does not need to be an even 50/50 split. It simply means that the settlement must be equitable and treat each person fairly.

What is equitable and fair? To a certain extent, it’s in the eye of the beholder. The judge has discretion. But an abuse of discretion is grounds for an appeal. You are effectively arguing that the judge reached a decision that no reasonable person would have.

An example could come in a marriage where one spouse worked and provided most of the income, while the other stayed home with the children and worked either part-time or not at all. The working spouse is naturally in a stronger financial position when the marriage ends. But the stay-at-home spouse has the right to maintain the lifestyle they were in during the marriage–or at least one that is reasonably equivalent to what their ex will have after the marriage.

Alimony payments are a way to make that happen. An abuse of discretion might come if the court orders an alimony amount that is impossibly low. The lawyer for the stay-at-home spouse might choose to file an appeal on these grounds. The appellate court will then have to decide if the alimony amount settled on was at least within the framework of reason, or if it constituted a genuine abuse of discretion.

What Winning an Appeal Looks Like

You’ve got a good case for appeal. Your attorney has presented it well. The judges seem sympathetic. You can almost taste victory. But what does that mean? We don’t want to throw cold water on your anticipation, but victory in a divorce appeals case can be complicated.

It’s not uncommon for appellant judges to rule that yes, a legal error was made by the original judge. The response is to simply give the case back to the original judge.

Let’s go back to our example of the couple with the extensive stock portfolio. The grounds for appeal here was the lack of sufficient hearing given to evidence. A win on appeal might simply be that the original judge has to take more time in looking at your evidence. It’s a win, to be sure, but a ruling still must be made–and by a judge whom your appeal effectively charged with not doing their job properly.

Divorce settlements have a lot of components to them and it’s likely neither you nor your ex is entirely satisfied. You might appeal based on one of the areas you’re dissatisfied with, and you might win. But in the review, the appellate judges might also find that areas where the original judge was favorable to you also need to be re-examined.

What this means, in layman’s terms, is to hold the champagne after you win. There’s a lot more work ahead.

Alternatives to Appeal

A sober assessment of the appeals process may lead you to look for alternatives. One of these is a motion for reconsideration. This operates on some of the same principles as an appeal–e.g., it must be based on an error in applying the law, not simply arguing the same points a second time. The difference is that it’s done with the original trial judge. Perhaps your lawyer believes there was simply an honest error made and, if brought to the judge’s attention, they will reconsider.

Another option is to still use the appeals process, but to approach it as a negotiating tool. You aren’t the only one being held in limbo by the long process it takes for an appeal to work its way through the system. Your ex also has that dark cloud hanging over them as well. Depending on how significant your differences are, your ex may see an upside to making concessions in exchange for you dropping the appeal.

Winning a divorce appeal is hard, and even winning comes with its own set of consequences. That underscores the importance of the original settlement. And it underscores how important it is for you to have an attorney who prepares diligently and then makes a strong argument before the court on your behalf.

DeTommaso Law Group, LLC has over a century of combined experience working for our clients. Our lawyers bring seasoned legal know-how and personalized human interest to our cases and we are determined to fight for their interests at trial…and beyond, if necessary and appropriate. Call us today at (908) 274-3028 or contact us online to set up an initial consultation.