Chapter 19

Appeal

You may find that despite your best efforts to settle your case, it went to trial and the judge made major decisions that will have a serious impact on your future. You may be disappointed or even shocked by the judge’s ruling.

The judge might have seen your case differently than you and your attorney did. Perhaps the judge made mistakes. Or it may be that Virginia law simply does not require or even allow for the outcome you were hoping for.

Whatever the reasons for the rulings, you may feel that the judge’s decisions are not ones you can live with. If this is the case, talk to your lawyer immediately about your right to appeal. Together you can decide whether an appeal is in your best interests, or whether it is better to accept the court’s ruling and invest your energy in moving forward with your future without an appeal.

19.1 How Much Time After My Divorce Do I Have to File an Appeal?

You must file an appeal within thirty days of the final order. Because your attorney may also recommend filing certain motions following your trial, discuss your appeal rights with your lawyer as soon as you have received the judge’s ruling. A timely discussion with your attorney about your right to appeal is essential so that important deadlines are not missed.

19.2 Can I Appeal a Temporary Order?

No, only final orders may be appealed.

19.3 How Should I Decide Whether to Appeal?

Trial judges have significant discretion on many of the issues in a divorce case, including the grounds of divorce, rulings regarding the assets and debts, spousal support, including the amount and duration, the custody and visitation award, and the award and amount of attorney’s fees. What that means is that the judge’s rulings will stand unless he made a significant error that affected the outcome of the case.

Though the trial judge has significant discretion, she also has many specific laws and rules that have to be followed that limit that discretion. When analyzing a potential appeal, your attorney has to identify whether the judge made an error by failing to follow or properly apply Virginia law.

You should not appeal simply because you disagree with the judge’s rulings. The Virginia Court of Appeals will not reverse the judge if the judge’s rulings were within his discretion. To have a chance of success on appeal, you must be able to show that the outcome was wrong because the judge made an error (for example, by misapplying the law, by not following a required procedure, or by making a ruling without supporting evidence).

19.4 What Are the Odds of Winning an Appeal?

Most divorce rulings appealed to the Virginia Court of Appeals are upheld by the Court of Appeals. In other words, most appeals fail. Parties often appeal because they are unhappy with the trial judge’s ruling, but that is an insufficient basis for an appeal. Realize that it is a rare case in which at least one of the parties is not unhappy with the trial judge’s rulings. Don’t appeal unless your attorney can identify an actual error committed by the trial judge that affected the outcome, and not just a discretionary ruling with which you disagree.

19.5 What Happens if I Appeal and Win?

This is an important question. In a small percentage of the cases in which a trial judge is overruled, the Court of Appeals makes a substitute ruling and the case is over. In most cases in which a trial judge is overruled, the case is sent back to the trial court, often to the same judge, for a new hearing or trial.

19.6 When Should an Appeal Be Filed?

An appeal should be filed only after careful consultation with your lawyer when you believe that the judge has made a serious error under the law or the facts of your case. Among the factors you and your attorney should discuss are:

Whether the judge had the authority under the law to make the decisions set forth in your divorce order

The likelihood of the success of your appeal
The risk that an appeal by you will encourage an appeal by your former spouse
The cost of the appeal
The length of time an appeal can be expected to take
The impact of a delay in the case during the appeal

19.7 Are There Any Disadvantages to Filing an Appeal?

There can be disadvantages to filing an appeal, including:

uncertainty as to the outcome
attorney’s fees and costs
the risks of a worse outcome on appeal than you received at trial
delay in finalizing your divorce
prolonged conflict between you and your former spouse
risk of a second trial occurring after the appeal
difficulty in obtaining closure and moving forward with your life

19.8 Is an Attorney Necessary to Appeal?

The appeals process involves detailed and specific court rules and deadlines. Given the complex nature of the appellate process, you should have an attorney if you intend to file an appeal.

19.9 How Long Does the Appeals Process Usually Take?

It depends, though an appeal often takes a year. A successful appeal may also result in the need for further proceedings in the trial court which will result in further delay.

19.10 What Are the Steps in the Appeals Process?

There are many steps which your lawyer will take on your behalf in the appeal process, including:

Identifying the issues to be appealed
Filing a notice with the court of your intent to appeal
Obtaining and filing a transcript of trial (a written transcript of the testimony by witnesses, and all statements by the judge and the lawyers made in the presence of the court reporter)
Performing legal research to support your arguments on appeal
Preparing and filing a document known as a brief, which sets forth the facts of the case and relevant law, complete with citations to the trial transcript, court documents, and prior cases
Making an oral argument before the judges of the appellate court

19.11 Is Filing and Pursuing an Appeal Expensive?

Yes, in addition to filing fees and lawyer fees, there is likely to be a substantial cost for the preparation of the transcript of the trial.

19.12 If I Do Not File an Appeal, Can I Ever Go Back to Court to Change My Divorce Order?

Certain aspects of an order are not modifiable, such as the division of property and debts and the award of attorney fees. Other parts of your order, such as support or matters regarding the children, may be modified if there has been a material change in circumstances.

A modification of a custody or visitation order would also require you to show that the change would be in the children’s best interests.

You should talk to your attorney about what parts of your order are final, and what parts are modifiable.