When a marriage encounters difficulties that cannot be overcome by the couple, many choose to divorce. This is a very difficult decision, and it can be complicated due to the unwinding aspects of the couple’s finances, custody of the children (if there are any), division of assets and possibly spousal support. In this article, we navigate the intricacies of appealing a divorce decree in the state of Utah.
In some divorces, there may be instances when one or both parties involved are not happy with the terms of the divorce decree and want to challenge it. Appealing a divorce decree is not easy. For this reason, it is the least common remedy requested in the appeals courts. This process can be significantly more difficult if the divorce settlement was agreed upon by both parties.
According to information sourced from the Equality in Marriage Institute, it was found that “the law generally favors the finality of judgments; therefore, relief from a final judgment or decree of divorce is usually not available absent exceptional and compelling circumstances.” While this type of decree can be made with a strategic and experienced legal team on your side, it may be more difficult to prove the adequate need to the court.
Valid grounds for appealing a decree of divorce could include:
- An error regarding applicable law that was made by the court prior to the final ruling
- Instances of fraud committed by either spouse in the first trial
- Discovery of hidden assets or pertinent facts intentionally or unintentionally held from the courts/spouse
In any of the cases above, the filing party must show how the judge made a mistake in the interpretation of the law regarding the case – which usually requires a legal team to evaluate and properly prove. One cannot just challenge the facts that were already clear at the first trial. However, the most likely scenario to be successful with appeal is one that reveals a legal error committed by the court.
There are other types of appeals that the court may consider and grant at its discretion. The first is the standard appeal, which is the most time-consuming. It must be filed within thirty days of the final decree. The decree cannot include any new facts and must be based on the court’s error of law. It is crucial to follow all rules and procedures and to adhere to the deadlines, or else you may face the risk of losing your right to appeal.
The Motion for Rehearing is a very specific type of request that must be filed almost immediately after the final ruling is issued. This request must be granted by the judge and is at his or her discretion to grant. It is not automatically granted.
A Motion for Relief from Judgement is also granted in limited cases. This motion may only be granted if something occurred which influenced the fairness of the divorce decree, such as fraud or concealed assets. This usually has a longer deadline for filing.
Deadlines are of utmost importance. Missing a deadline may disqualify you from appealing the decree. Although you have to decide and act quickly when filing an appeal, the process itself is usually not a rapid one. It could take as long as two years, and it may be expensive.
Unfortunately, in many cases, the chances of success on the appeal of divorce are low. Your chances of prevailing in your efforts are always better with an attorney who is experienced in appellate law. This may mean that you may need to retain a different lawyer than the one who handled the divorce, as this is a different subspecialty of law. The issues for this type of appeal are very complicated and technical, so a new attorney means someone with a new perspective and experience will aid in your efforts for relief.
The process begins with the appellant (or counsel) filing a notice of appeal. A brief must be prepared that details the reasons for the appeal. It must include a verbatim trial transcript and all trial paperwork (including pleadings, evidence and documents.) When received by the appellate court, it is reviewed, and the court may decide to hear arguments. No new evidence will be considered.
After the appellate court has had time to review all the documents and consider the oral arguments (if any), you can then move to the next phase of the process. Often the appellate court will uphold the trial court’s ruling. If not, however, the court will then either reverse the trial court ruling or remand the case back to the trial court for a new trial.
A Motion to Modify the Divorce Decree may prove to be a simpler and less expensive way to change some of the terms of the decree, such as child support, custody arrangements, visitation, spousal support or property division.
Whichever option you may be considering, conferring with an experienced attorney will be worth your time and experience involved. You will make more of an informed decision upon a full understanding of the laws surrounding the appeal of a divorce decree, and have a professional to help you present the best case possible. If you are facing a divorce decree, reach out to the experts at Ascent Law for a free consult call: (801) 432-8682. We can help evaluate the case and provide you with additional information to make the most informed decision possible.