New Jersey Family Law and Divorce Appeals

When a divorce or other family law case goes to trial, the trial court issues a decision that can then be appealed to the appellate court. The appellate court usually consists of a panel of either two or three judges who will review your case to determine whether the trial court made a mistake. An appeal is not a new trial. The appellate court does not hear live testimony, or examine new evidence; rather, the appellate court’s job is to make rulings of law. What that means is that, while an appellate court does examine the law, when it comes to the facts of your case, unless there is an extremely blatant mistake of those facts, the appellate court usually defers to the trial court’s judgment regarding whose version of the facts is true. That is why having the right appellate counsel is critical.

After an appeal is taken to the first level of appellate courts, some cases can also be taken to the Supreme Court (either state or federal). For those types of cases, a special appeal, usually referred to as either a Petition for Certification or Petition for Writ of Certiorari, is required. The rules for petitions to the Supreme Court are even more complex than regular appeals, and the stakes are usually much higher.

Timing for an Appeal

If you or someone you know is planning to appeal a ruling of a trial court, there is not much time to waste, and the Rules of Court are very strict. Speaking with a lawyer sooner rather than later is important so that you do not accidentally lose the right to appeal by missing a deadline.

For interlocutory appeals (meaning appeals of an order from a case that is not completely finished at trial), the deadline for filing an appeal is 20 days from the date the trial court’s order is served.  For appeals from final decisions of family law judges, and for appeals from certain administrative agencies (like abuse or neglect findings from the Division of Child Protection and Permanency), the deadline for filing an appeal is 45 days from the date the trial court’s order is received, or 45 days from when the agency’s ruling is received. Some types of family law cases have specific deadlines.  For example, a person who wants to appeal the termination of their parental rights has only 21 days to appeal from the date the lower court’s order is received.

The rules for Supreme Court petitions are different, depending upon whether the appellate court has already ruled on your case, and also depending on which Supreme Court you are petitioning.

Do I Have Grounds for a Divorce or Other Family Law Appeal?

When deciding whether to appeal a divorce judgment or another family court ruling, you should consult with a family law attorney in New Jersey who is familiar with how the trial and appellate courts work. Appealing a divorce or other family law matter can be legally complex and is not like a trial. Many family law lawyers, although competent in handling trials, have never handled an appeal. That is because the appellate courts have different rules and different legal standards than trial courts when deciding cases. Some situations wherein an appeal makes sense are:

  • If the trial judge failed to apply the controlling law correctly.
  • If the trial judge failed to address all issues.
  • If the trial judge failed to make critical findings of fact.
  • If the trial court abused its discretion by ruling contrary to the weight of evidence presented.
  • If your case presents a new question of law such that an appellate or Supreme Court ruling from your case would give insight and guidance to other families and other courts.

Things to Consider Before Appealing a Divorce or Other Family Law Case

Regardless of who handled your divorce trial or other family law case, you may need a different lawyer for your appeal—someone who is intimately familiar with the appellate process. Often times having a different lawyer gives a fresh look at a trial court’s decision and provides clarity that helps determine the chances of winning the appeal.

In addition to you reviewing your case with a skilled appellate lawyer, that appellate lawyer is going to need trial transcripts (or at least a trial audio tape) of the proceedings in order to assess how sound the trial court’s rulings are and what areas may be best to target for an appeal.

Further, it is important to be aware that, unless there is an emergency (what the appellate courts consider to be irreparable harm), an appeal can take a long time – a year or longer. It also is important to be aware that, while your appeal is pending, you still have to obey the trial court’s ruling unless your appellate lawyer can get a “stay” of the order through a formal motion.

Finally, you should keep in mind that the appellate courts are like the trial courts. If the appellate court thinks that your appeal is frivolous or in bad faith, you may be responsible for paying fees to the prevailing party.

What Steps Are Involved in Appealing a Divorce or Other Family Law Case?

Because the rules governing appeals are very complex, non-lawyers (and even many trial lawyers) have trouble understanding all the nuances. That is why consulting with appellate counsel is always recommended.

Once retained and having reviewed as much material as possible, the next step in the process for your appellate lawyer is to file a formal notice of appeal. The objective is to describe the legal issues in the appeal and state how the trial court or agency erred.

Next, the filing fees must be paid. The appellant must also deposit money with the court clerk to pay for costs of the appeal.

The next step is to file a Civil Appeal Case Information Statement. This form contains information about the parties, their lawyers, and the issues to be raised in the appeal.

After the appeal is filed, the appellant must verify that they have ordered official transcripts of the trial court proceedings. The transcripts are the records recorded by the court reporter during the trial. The cost to produce the transcripts can be more than $1,000 per day. Three copies must be sent to the Appellate Division court, and one copy must be sent to the appellant’s adversary. The transcripts must be supplied by a certified transcriber that is acceptable to the appellate court.

In addition to ordering official transcripts, the appellant must gather and eventually provide the appellate court with copies of all pleadings, all court orders, and all evidence and other documents that were relied on at the trial. These documents, together with the transcripts, are what are collectively known as “the record below.”

Next, legal briefs must be researched, written, and filed within a prescribed period of time (usually 45 days after the notice of appeal). The brief can only rely on the record below. A lawyer will discuss with you possibilities to supplement the record below through various motions and applications, but most appeals rely only on what already transpired.

All of the above appellate documents must conform to extremely specific guidelines regarding typeface, font size, pagination, formatting, paper color, and binding or else the court will deem your appeal deficient and could return your entire application.

Once your brief is submitted, the other side usually has a chance to submit their legal brief (deadline of 30 days), and you may have a chance to submit a reply brief as well (10 days).  The court will then consider the briefs and all of the record below when rendering its decision.

If either party wants to have oral arguments in the appellate court, a formal request must be made. Otherwise, that right is deemed waived. The argument itself is usually restricted to approximately 30 minutes, although for certain types of cases the appellate court in its discretion may afford more time.

Along the way, some cases also have appellate motions that happen while the appeal is pending. Those appellate motions are different than trial court motions, with different rules, different standards of proof, and different time frames.

The above process and steps can take a long time, which is why typical appeals can last a year or longer.

Motions for Reconsideration, for a New Trial, or to Expand or Supplement the Record Below

It is important to remember that new evidence is rarely brought before the Appellate Division. The court can only review the pleadings, orders, and transcripts of the trial. If new evidence has come to light or there has been a change in circumstances since the divorce or family court ruling, a litigant can file a motion for reconsideration, a motion for a new trial, or a motion to expand or supplement the record. Each of these types of motions has different filing deadlines and different requirements to prevail.

It is important to remember that if your divorce or other family law case never went to trial but ended in a settlement agreement, this usually cannot be appealed because both parties agreed to its terms. If there is a change in circumstances, the terms of the agreement may be able to be modified by the court upon application.

New Jersey Family Law and Divorce Lawyers at Lyons & Associates, P.C. Have Extensive Experience Handling Family Law Appeals

Appealing a family law case in New Jersey is never an easy decision, but one of our skilled New Jersey family law and divorce lawyers at Lyons & Associates, P.C. can help. To schedule a free consultation, call us at 908-575-9777 or contact us online. Located in Somerville, Morristown, and Freehold, New Jersey, we handle appeals for clients and Supreme Court cases throughout New Jersey, including Basking Ridge, Bedminster, Bridgewater, Chatham, Madison, Mendham, Morris Plains, Morristown, Parsippany, Randolph, Rockaway, Short Hills, Somerset, South Plainfield, Woodbridge, as well as Morris County, Somerset County, and Union County.