Appeal Divorce Ruling – Divorce Court Appeals in Florida
Overview – Appealing a Divorce Judgment
There are various types of appeals possible to contest a divorce order. The exact form of appeal depends on the type of divorce judge and the stage you are in. While it is possible to file a divorce appeal the rules are complex and it is a difficult do it yourself procedure. If a divorce attorney is available, costs can rise rapidly. And success is not guaranteed. Despite the drawbacks, you have a right to dispute rulings and some people are successful in overturning a judgment. The one thing to keep in mind is that timing is absolutely critical. Appeals cannot be even one day late.
Grounds to Appeal a Divorce Ruling
The right to appeal does not include the right to simply disagree with the judge. You must have a reason why the divorce judgment should be changed. Typical reasons include: new discovered facts, concealment of assets, fraud perpetrated on the court by your spouse, and legal mistake by the judge. The burden of proof is on you because Florida divorce law gives any completed judgment the benefit of the doubt. The appellate courts start with the conclusion that any trial judge did things exactly right. So you must be very thorough in documenting how the trial court came to the proper conclusion.
Types of Divorce Appeals
Notice of Exception to the Report and Recommendation of a General Magistrate:
This is a type of objection that can be made if your case was heard by a General Magistrate. The objection must be made within 10 days or less. Time is critical! If you make this type of objection, your case will automatically be scheduled for a hearing before a Circuit Judge. You cannot simply reargue the facts. Your argument cannot consist of your “dislike” for the divorce decree. You must be prepared to prove you are entitled to a change based on the grounds for appeal. All cases heard by a General Magistrate are recorded by the Court. You must get a transcript of the hewing and submit it with your objection.
Motion for Rehearing:
This motion must be made almost immediately after an order is handed down by the divorce court. It is a type of appeal very similar to the prior paragraph. This type of objection is made if your case was heard by a Circuit Court Judge. You do not have an absolute right to a rehearing – the judge has the option of declining your request. Your appeal of a divorce ruling must be based on adequate grounds. This is a very technical subject and is beyond the scope of this tutorial on appeals. Most fail because the request goes to the very same judge that made the initial decision. But this type of motion is frequently used as an initial step to filing the actual appeal.
This is the type of appeal everyone normally sees or hears about. Your divorce appeal will be heard by the District Court of Appeals – a court that is higher than the trial court. This type of appeal must be initiated within 30 days of the date of the order. An appeal is the most technical type of filing. You cannot show any new evidence or facts to the Appellate Court. Everything is based on the evidence shown in the trial court. You must be prepared to show the Appellate Court the Trial Court did not follow the established divorce law. The actual appeal requires us to prepare an Appellate Brief – a 10 to 50 page technical document that details the law and how the trial court judgment did not comply with the law. Even if you win an appeal, some cases must go back to the trial court to weight the issue once again.
Motion for Relief from Judgment or to Set Aside a Judgment:
This is the only option available to you if a month or more has passed since the time of your hearing. It is also the most difficult type of relief to get. In divorce cases, the most common reason to overturn a judgment is due to your spouse hiding large amounts of assets that where not considered in the original trial. This is known as “fraud on the court.” There are many other reasons to request the court set-aside the final judgment and as everything else – it is a challenging, technical area of law.
The Bottom Line on Divorce Appeals
It is difficult to “put the toothpaste back in the tube. In other words, if you let your case get to the point where you need an appeal – it is already unlikely you can change the ruling. That is not to say it is impossible – it is just a lot harder. We do enjoy these types of cases because of the huge benefit a success can bring.
Hiring an Attorney to Appeal a Divorce Judgment
The costs of appealing a ruling can be high and the results unsure. But sometimes a strong effort and good research can produce a successful appeal. Ayo and Iken can provide you with an experienced attorney for your appeal, motion for rehearing, or notice of exception. Call us immediately if you believe a divorce appeal may be what you desire.
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I hired Howard Iken as my attorney to handle my divorce case. Not only did he secure a win for me in the eventual divorce trial, he was also successful in having the post divorce trial petitions (4) filed by my ex-husband dismissed. Mr. Iken is very professional and adept at developing strategies that are favorable to his clients. He is organized, thorough, creative and more than willing to go the extra mile. I would highly recommend Mr. Iken’s law firm to anyone seeking legal services.
Attorney Cheri Hobbs