Divorce Appeals in Wisconsin
What is an appeal? | What kinds of family court orders can I appeal | What is the difference between an appeal and a De Novo Review? | What is the appellate process in family law cases? | How long does the appeal process take? | What is the cost of appealing a family law order? | What if I don’t win my appeal?
Final Orders | Non-Final Orders | Stipulation or Agreement | De Novo Review | Talk to an Appellate Attorney
What is an appeal?
An appeal is not a “do over.” It is not an opportunity to argue your case or present your facts and evidence to a different court with hope of obtaining a better result.
An appeal is a “review” of the trial court proceeding for errors and is an opportunity to possibly change the result of your case in the lower court.
What kinds of family court orders can I appeal?
You can appeal any “final order” that is adverse to you.
A “final order” is any order that disposes of the entire matter by resolving all the substantive issues between the parties and that is intended to be the final document resulting from the parties’ court proceedings. In a family law context, a final order can be the Judgment of Divorce, Judgment of Paternity, or even a post-judgment modification order. Our experienced family lawyers would be happy to consult with you for the purposes of helping you determine whether your Order is a “final order” that is appealable.
Non-final orders can be appealed with permission.
On rare occasions, you might be able to appeal a non-final order if resolution of the issue appealed would materially impact the outcome of the final order or irreparably prejudice one of the parties in the court’s final determination. An example of such a situation in a family law context might be an order for declaratory judgment that erroneously determines the marital home is owned by a third party and, therefore, is not part of the marital estate subject to division. An attempt to appeal a non-final order is called an “interlocutory appeal” and can only be advanced with the permission of the court of appeals. This permission is disfavored and is rarely granted. Our experienced appellate attorneys can give you guidance about whether or not your issues might be accepted for an interlocutory appeal.
Orders Entered by Stipulation or Agreement
Generally, you cannot successfully appeal a judgment or order based upon a stipulation or agreement you consented to.
The Court of Appeals will not protect you from your own regretful decisions and will not entertain “buyer’s remorse.” If you have entered into a stipulation or agreement that has been reduced to a judgment or order and you now wish to change it or withdraw your consent, please contact us for a consultation regarding your options.
What is the difference between an appeal and a De Novo Review?
A De Novo Review is a request for your county’s trial court judge to review (and revise) an order made by a court commissioner. In a De Novo Review, the trial court judge will conduct a new hearing as though there had been no hearing or ruling by the court commissioner. Typically, each county has its own rules about when and how a request for De Novo Review must be filed. Here are De Novo Review rules and deadlines that may be relevant to your county.
An appeal entails a more formal process than a De Novo Review. Unlike the De Novo Review process which takes place within the same county court system as your case, an appeal moves the case outside of your county court to one of four appellate districts designated by geographic area, known as The Court of Appeals. Wisconsin’s Court of Appeals comprises 16 judges, from four different districts located in Milwaukee, Waukesha, Madison and Wausau.
Learn more about whether or not a De Novo Review is right for you, here.
What is the appellate process in family law cases?
An appeal is handled almost entirely on paper—no testimony, no courtrooms.
Step 1: File a Notice of Appeal. If you wish to initiate an appeal, you must do so within 90 days of the entry of the adverse final order or within 45 days if you have been given a special “Notice of Entry of Judgment” informing you that the adverse decision is an appealable final order.
Step 2: Notify the Trial Court. You must notify both the opposing party and the judge who made the adverse decision that you are appealing the order. The judge’s clerk will compile the court record—consisting of all the documents presented at the trial (and leading up to it), and any hearing transcripts (which you will have to purchase and provide).
Step 3: Submit all Filings and Briefs. Meanwhile, your appellate attorney will prepare a written brief detailing the errors you believe the trial court made in reaching its decision and why it should be reversed. After you submit your brief, the other party will have an opportunity to submit a response brief explaining why the trial court’s decision was correct and should stand. Finally, you will submit a reply brief—which gives you one final chance to present your position and point out the lower court’s errors.
Step 4: Attend the Oral Argument (if granted). After the court has received the court record and all briefs, it will take the case under advisement. The court may decide it has questions that are unanswered by the appellate submissions or that the issues are particularly complex and may have far-reaching implications. If this is the case, the Court of Appeals can schedule an oral argument where it will ask your attorney and the opposing party’s attorney further questions.
Step 5: The court will issue a written decision. After four to six months, the court will then issue a written decision. If it finds that the lower court made errors, it will reverse the trial court’s decision. If it finds the lower court did not make errors, it will affirm the trial court. Sometimes, the Court of Appeals will “remand” the case—meaning it has found possible errors, but will allow the trial court a chance to correct them (often with instructions from the Court of Appeals on how to make those corrections).
How long does the appeal process take?
In Wisconsin, a typical appeal takes approximately 9 months. The first three months are for compiling the record and briefing the case. Once the court has received all briefs, it issues a written decision four to six months later.
What is the cost of appealing a family law order?
While the initial filing fee is typically no more than a few hundred dollars, appealing a divorce can be costly. That’s why it’s always best to speak with one of our appellate attorneys to determine whether or not you’ll get the results you want.
What if I don’t win my appeal?
If you lose, you can petition the Supreme Court to review your case.
If the Court of Appeals either upholds your loss in the trial court or takes away a hard-fought win on appeal, you can petition the Supreme Court for review of the Court of Appeals’ decision. However, that decision, again, must be adverse to you and you must file your Petition within 30 days of that adverse decision—no exceptions.
A Petition for Review is not an argument or a presentation of your case. It is a statement that is intended to persuade the court as to why the Supreme Court should hear your case at all. The Supreme Court will only hear cases that fit into a few very narrow categories.
In fact, only ten percent of Petitions for Review are granted.
While the Court of Appeals’ job is to correct errors in the lower court, the Supreme Court’s primary function is to develop the law. Therefore, it will only accept cases that meet one or more of the following criteria:
- The case presents a real and significant question of federal or state constitutional law
- The case requires the Supreme Court to consider establishing, implementing, or changing a policy within its authority
- A decision from the Supreme Court will help clarify, develop, or harmonize the law
- The Supreme Court must issue a decision to establish continuity with or to emphasize deviation from controlling the Court of Appeals’ decisions on the same issues.
Talk to an Appellate Attorney
At Karp & Iancu S.C, we are one of the only family law firms in Wisconsin to have a dedicated in-house Appellate Practice Group consisting of four attorneys who:
- have collectively 100 years of experience practicing exclusively in family law and family law appeals.
- have been lead counsel on nearly 40 cases in the Court of Appeals and Wisconsin Supreme Court.
- have experience managing all aspects of appeals
- have represented petitioners and respondents
- have initiated appeals and won reversals
- have defended appeals and won affirmations
- have successfully Petitioned the Supreme Court where they have argued and won landmark family law cases such as Frisch v. Henrichs, 2007 WI 102, 304 Wis. 2d 1, 736 N.W.2d 85.
Represented by an attorney that doesn’t handle cases on appeal? Schedule a joint consultation for you, your trial counsel and one of our appeals attorneys to debrief on your appeal goals.
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