The divorce process is unique to everyone that experiences it. Sometimes, it is possible for both spouses to agree to the terms of a divorce. When this happens, a divorce is referred to as uncontested. However, when both spouses are unable to reach an agreement on the terms of the divorce, the divorce is referred to as contested. Contested divorces can take longer, especially when children are involved or if there are extensive assets that must be divided.
What is an Appeal?
The divorce process is unique to everyone that experiences it. Sometimes, it is possible for both spouses to agree to the terms of a divorce. When this happens, a divorce is referred to as uncontested. However, when both spouses are unable to reach an agreement on the terms of the divorce, the divorce is referred to as contested. Contested divorces can take longer, especially when children are involved or if there are extensive assets that must be divided. When spouses cannot agree to the terms of a divorce, a Florida judge will determine the outcome of the divorce including division of assets and any support payments that may be appropriate. The hearing takes place without a jury, and the judge can use his or her discretion after seeing evidence and listening to any witnesses that may be part of the trial in order to determine the most appropriate outcome for the divorce. If the parties to the divorce are not satisfied with the outcome of the divorce proceedings, they have an opportunity to request an appeal of the divorce decree.
How do Florida Divorce Appeals Work?
Your Florida divorce starts when you file a form known as a Petition for Dissolution of Marriage in the circuit court of the county in which you are filing. Once the process has been completed and the judge has made a final determination about your divorce settlement, you can file an appeal of the divorce order. Depending on the type of appeal you pursue and the outcome of that, various processes are set in motion after initiating an appeal.
What Types of Florida Divorce Appeals are There?
There are several different types of appeals available depending on where your divorce was heard. Timing is critical in each of the different processes, so you must make sure to act as quickly as possible when you decide to appeal your divorce judgment. Your options for appealing a divorce include:
o (a) Notice of Exception to the Report and Recommendation of a General Magistrate: Some divorces are heard by a general magistrate. In Florida, a general magistrate is an attorney who has been appointed by a judge to take testimony and make recommendations on the matter before him or her. These recommendations are reviewed by a judge and are usually accepted unless they are contrary to law or fact.
o (b) Motion for Rehearing: If your divorce was heard by a circuit court judge, you can immediately make a motion for your case to be reheard. Often, these motions are approved or denied by the same judge that heard the original case. Making this motion will not automatically grant you the right to have your divorce reheard, but this serves as an initial step in the Florida divorce appeals process.
o (c) Traditional Appeal: This is the type of appeal most people are familiar with. A traditional appeal is heard by a Florida District Court of Appeals and must be requested within 30 days of the divorce ruling. There are five of these courts throughout the state, each of them hearing appeals from different counties. An appeal is a type of procedure in which you argue that the original court did not follow established law in making the divorce decree. It is important to remember that during an appeal, you will not be allowed to introduce any new evidence. Some people believe they have a “smoking gun” that they will be able to use to surprise their former spouse and potentially change the outcome of a case, but all evidence for a divorce must be introduced during the original trial. Appeals are difficult and require in-depth technical understanding of Florida divorce law. Winning an appeal does not necessarily mean that you can change the outcome of the case. In fact, sometimes winning an appeal means you need to go back to a lower court to retry the divorce.
o (d) Motion for Relief from Judgment: Sometimes also referred to as a motion to set aside a judgment, this is the only option available when 30 or more days have passed since the divorce order was finalized. It is difficult to be successful using this method, but not impossible. One of the most common reasons for a court to set aside a divorce judgment is because it becomes known that your former spouse was hiding assets during the divorce and those assets were not considered during the initial trial.
When can You Appeal a Divorce?
You have the right to appeal a divorce for pretty much any reason. However, the appeals process can be lengthy and costly. Working with a family law attorney that focuses his or her practice on divorce is an important step in considering whether or not to appeal a judgment. It is important to remember that you are not guaranteed a better ruling simply because you have appealed the original ruling. In order to be successful in your appeal, you need to have a valid reason for appealing the original ruling other than simply not liking the terms. You will need to present clear and convincing evidence that the trial court did not follow established Florida divorce law or that important facts were overlooked, such as hidden assets.
The Bottom Line on Divorce Appeals:
It is difficult to “put the toothpaste back in the tube. In other words, if you let your case get to the point where you need an appeal – it is already unlikely you can change the ruling. That is not to say it is impossible – it is just a lot harder. We do enjoy these types of cases because of the huge benefit a success can bring. The costs of appealing a ruling can be high and the results unsure. But sometimes a strong effort and good research can produce a successful appeal. Thomas McDonald Law Firm can provide you with an experienced attorney for your appeal, motion for rehearing, or notice of exception. Call us immediately if you believe a divorce appeal may be what you desire.