After months of tension in a contested divorce trial, a ruling that you believe is unfair is disheartening. You might feel angry, thinking that the judge got it all wrong and did not understand your side. You might want a do-over.
But can you appeal?
Grounds to appeal a New York judge’s determination in your divorce are limited. Being unhappy with the outcome is not grounds. There are, however, situations where an appeal is warranted.
Our legal team at Jason M. Barbara & Associates, P.C. can walk you through the process.
What Is an Appeal?
NYcourts.gov defines an appeal as “a procedure by which a party who has been adversely affected by what he or she believes to have been an error or mistake by a judge of the Family Court may seek to have that order overturned in a higher court.”
If you want to appeal the judge’s decision, time is of the essence. The right to appeal a divorce decision/judgement/order is 30 days after the service of notice of entry of the decision/judgment/order.
You can file an appeal on any of the following family law matters:
Where an appeal is filed is determined by the location of the lower court that made the ruling.
- The First Judicial Department hears appeals from New York and Bronx counties.
- The Second Judicial Department hears appeals from Kings, Queens, Richmond, Westchester, Rockland, Orange, Suffolk, and Nassau counties.
- The Third and Fourth Judicial Departments here cases in upstate and western New York.
What an Appeal Is Not
An appeal is not a new trial. The same evidence that was presented in the original trial will be given to the appellate court. Your attorney offers a written argument and a brief oral argument that backs up the grounds for the appeal.
New testimony and other evidence are not allowed in the appeal.
Grounds for an Appeal
As was previously stated, appeals are not granted for simply any reason.
Grounds for appealing elements in a divorce ruling include the following:
- The judge’s decision was incorrect as a matter of law.
- The judge abused their power.
If there are grounds for an appeal your attorney will file a notice of appeal with the clerk of the correct court. Again, the petition must be filed within 30 days of the original order or an appeal may be barred.
If the 30-day time limit expires, it becomes much more difficult to appeal, if not impossible. Once the appeal argument has been submitted or delivered in person, the appellate court reviews the evidence for mistakes or errors in the original trial. The judge in the higher court then renders a decision.
Possible Results in a Family Law Appeal
There are three possible outcomes of a family law appeal:
- The lower court decision is upheld, and the appeal is denied.
- The appellate court modifies some or all the original order, creating a new court order.
- The lower court orders are reversed or suspended. The case is sent back to be retried.
The appellate process does not absolve the involved parties from complying. Unless and until further action is taken, the original order stays in place and enforceable. If you want to put the order on hold as the appeals process plays out, you must also file an application for a stay. Both the original court and the appellate court can be petitioned for a stay.
Legal Support for Divorce Appeals
If you are considering appealing a recent divorce judgment, your first step is to talk to one of our attorneys. We can evaluate whether there are potential grounds to justify the appeal. An appeal should only be considered after thoughtful deliberation and legal guidance. Time and cost can be significant, especially in cases where new trials are necessary.
An effective way to minimize the need for an appeal is to have trusted and intelligent legal counsel during the initial divorce proceedings. We offer personalized and zealous representation for each client.
Want to learn more about divorce or judgment appeals? Schedule a consultation with our team about your case, contact us online or call (516) 406-8381.
