While it is possible to appeal a divorce decision, it is not easy. You must have a specific reason for the appeal and be able to prove important elements of your case. Even the smallest mistake could result in a loss. Divorce appeals are also some of the most complex cases. If you have gotten a divorce and are considering appealing a decision, our Appleton appeals attorneys can help.
What is an Appeal?
In just about any type of legal proceeding, one or both parties can appeal a decision. Appeals provide a legal form of checks and balances, and make sure that if a judge or jury makes a mistake, there is a way to correct it. In divorce cases specifically, either party has the right to file an appeal if they feel the decision made in their case was wrong. There is a deadline to do this and it is between 45 and 90 after the judge has made their final ruling, depending on the facts involved in the case.
Divorce appeals are first taken to the Wisconsin Court of Appeals. This court consists of three judges who review lower court decisions, hear the arguments of the parties involved, and determine whether they should uphold or turn over the lower court’s decision. This stage of the appeals process usually takes about one year to complete. After this time, it is more likely that the Court of Appeals will not issue a new decision but rather, return the matter to the lower court to fix the error. This adds even more time to the case.
If you do not agree with the decision made by the Court of Appeals, there is usually very little you can do. If your case involves constitutional issues, it may be possible to take the case to the Wisconsin Supreme Court. This is rarely done in divorce cases and is an even more expensive and time-consuming process. In the majority of cases, the last level of review available is the. Wisconsin Supreme Court.
What Happens During an Appeal?
Many people think an appeal is a new trial, but it is not. The appeals court will consider any new testimony or any new evidence. They will only review the records pertaining to the case and the decision of the lower court. They will then determine if a mistake was made.
In the majority of cases, the appeals court finds in favor of the lower court, which makes proving there was a mistake made more difficult. This is especially true in family law cases. The appeals panel will only review the case to determine if the original decision was fair and equitable. This is highly subjective and factual and greatly dependent on the evidence presented by the parties. It is for this reason that appeals courts are extremely hesitant to overturn the decision of the lower court. In most cases, the decision has to be highly erroneous.
To determine that the judge’s decision was greatly erroneous means much more than interpreting evidence and determining that someone could disagree with the decision. In most cases, the party appealing the decision must show that the judge made a mistake when applying the law to the case, or that the judge did not provide sufficient support for their findings.
Due to the high standard of proof a party holds to show there was a mistake, it is important to very carefully consider whether or not the appeals process is worth it. The chances of obtaining a successful outcome are small, and the appeals process is much more expensive and time-consuming than the divorce trial. An appeal is usually only recommended when it is very clear that the judge has made an error.
If you agreed to a certain term and are unhappy about your own decision, you cannot file an appeal. For example, if you waive alimony in exchange for receiving a fine work of art during the divorce process, you cannot appeal the fact that you did not receive alimony. If you have agreed to something and now wish to change the terms, it is best to speak to a Appleton appeals attorney who can advise you of the options you may have.
Hearing De Novo
A hearing de novo is a hearing in trial court that largely mimics an appeal. Family law hearings are often not overseen by a judge, but a family court commissioner. If the commissioner rules against you or makes a decision you disagree with, you can ask for a new hearing before the circuit court judge. Depending on the county you are filing in, there are very strict time constraints on this request.
A hearing de novo is not the same thing as an appeal. Instead of simply reviewing the facts to determine if the lower level court, a hearing de novo is essentially a new trial. This means that you can present new testimony and new evidence that could significantly change the outcome in your divorce case.