New Jersey Appellate Process
If your divorce trial is over and the trial court issued a final order, it likely means that various issues pertaining to support, equitable distribution, custody, etc. were decided. What if you feel that the trial court made a legal error during your trial by misinterpreting the law, or allowing evidence or testimony that should not have been admitted?
In these types of situations, you are not without options. There are circumstances to justify a reversal of a divorce judgment in new jersey, but they generally need to be exceptional and compelling. As a practical matter, this means demonstrating that the judge abused his or her discretion, or made a ruling that was erroneous based on law, fact, or procedure.
For example, this could happen when a trial court awards spousal or child support that is not consistent with the range of awards that are normally given.
What to do:
You may appeal a final divorce decree, as a matter of right. The appeal would be filed with the Appellate Division of the Superior Court by your divorce attorney in new jersey. The Appellate Division is an intermediate court that is tasked with deciding whether a trial court judge made a material error that would warrant a reversal and/or remand. If a case is reversed, then in most instances a new trial is ordered. If a case is remanded, it is sent back to the trial court with specific instructions about the mistakes that must be corrected. In some circumstances, the Appellate Division may decide to rule on the issue(s) itself.
It is important to note that an appeal is not a new trial. Generally, there is no opportunity to introduce new evidence or new testimony. Instead, the Appellate Division bases its review entirely on the record of the trial court (i.e. the pleadings, orders, and transcripts for the case below). An appellant (the person filing the appeal) has forty-five (45) days to do so, after the final order is entered. Therefore, it is critical to keep track of time and deadlines following your divorce trial.
After filing a Notice of Appeal, transcripts of the trial proceedings must be ordered, legal briefs must be drafted, and attorneys may have to appear at oral argument before the Appellate Division. Generally speaking, the appellate process can take between one to two years to complete. Nevertheless, the Appellate Division has the discretion to accelerate the appeal so that it is heard more quickly. In order to have a matter handled on an expedited basis, you must file an application with the Appellate Division and conclusively demonstrate why the matter cannot be considered in due course.
Filing an Appeal
It is also important to note that filing an appeal does not automatically stay the terms of a divorce decree. If an appellant wishes to prevent the divorce judgment from being enforced, then he or she must file a motion for a stay with the trial court (and later the Appellate Division, if necessary).
Finally, if you decide to appeal your divorce judgment, you are not required to be represented by the same new jersey family law attorney who represented you during your divorce. This could lend a fresh perspective to your case that may have been overlooked by your previous attorney.
Anyone contemplating an appeal of a divorce judgment in new jersey should speak to a qualified matrimonial attorney who has experience in appellate work. At Lesnevich, Marzano-Lesnevich, O’Cathain & O’Cathain, we implement our knowledge as trial lawyers, as well as our sophisticated understanding of case law, to ascertain whether appealable errors occurred in the trial court.
Our experienced attorneys have successfully presented various appeals at both the New Jersey Appellate Division and the New Jersey Supreme Court.