The decision whether to file an appeal may be difficult to make and there may be several factors to be considered. This article offers a few points of information on divorce and family law appeals.
To appeal or not to appeal; that may be the question in the minds of family law litigants who do not receive the desired outcome. In contested divorce and family litigation, there may be a sense of how the court may rule on the contested issues at a temporary orders hearing and at a final trial. Winning or losing on contested issues may be somewhat expected based on how the case has been progressing, or it the court’s ruling could be a surprise. When people are not satisfied with the outcome of the family law case they may ask their attorney about filing an appeal with an appellate court, and possibly all the way to the Supreme Court of Texas.
The best types of appeals involve conflicting issues of law or fact that are novel and are not yet addressed by either statutory or case law. Even when there are novel issues for appeal, the courts may hesitant to overturn lower courts, especially when there is significant activity on such issues which may be being addressed at a legislative level. Nevertheless, there may be some issues and decisions worthy of filing an appeal even in the most straight forward contested matters like child custody and the allocation of money. Sometimes even good judges make errors.
The decision whether to file an appeal may be difficult to make and there may be several factors to be considered. The following are a few points of information on divorce and family law appeals.
Certain decisions by the court can be reconsidered in the future. For example, a custody decision that might not match your expectations can be reviewed in the future when there is information to bring to the court’s attention supporting a petition to modify conservatorship or possession and access schedules. If things are not working as ordered, it may be appropriate to seek a modification. Note that this is not something to file one month after the divorce, and it must be based on something more than not liking the court’s decision. That said, your situation might not be as permanent as you think.
Unlike decisions about custody, the division of assets and liabilities may carry more finality, especially where there are no restrictions as to what happens to money after it is divided. If the property award was not in your favor, you might consider an appeal if you and your attorney agree that the court abused its discretion or made an error of law. Especially in cases where children are involved, you may be in front of the same judge against whom you filed an appeal on some later date, which might not be a pleasant situation.
Too often, when a lawyer advises their client against appealing, a client might take it on their own to research how to file their own appeal. While there certainly are do-it-yourself resources available to the public and for purchase, it is not advisable to appeal court decisions that are most likely to be affirmed. In any case, the appeals and any decisions made, continue to exist in public record regardless of outcome. Attempting appellate litigation on your own might later be regrettable.
The appellate process requires significant time and resources. After a Notice of Appeal is filed, which must be done within a specified period after the final order is entered, the trial court record is prepared and the person bringing the appeal will be on a schedule with a deadline to file their Appellant’s Brief. The other party then has time to file their Appellee’s Brief which may itself be replied to by the Appellant. The appellate courts have specific rules for briefs and these are technical documents of review and analysis of the court’s applications of facts and law. The appellate courts may elect to schedule and hear oral arguments on the briefs, or they may decide the outcome based on the brief submissions alone. From start to finish, appellate litigants should be prepared for a time and resource commitment.
To learn more about divorce and family law appeals, you may contact Scroggins Family law for additional information or to review your case.
*Mark L. Scroggins is *board-certified in family law by the Texas Board of Legal Specialization. Unless otherwise noted, other attorneys are not *board-certified.
**Super Lawyers (a Thomson Reuters service, awarded to Mark Scroggins 2014, 2015, 2016, 2017, 2018, 2019, 2020, 2021)
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