What Kind of Rulings Can a Judge Make?
There are various issues that may arise during a divorce which could require court action. When you need the court's help, you'll typically file a "motion," which is a written request for the judge to resolve a dispute.
Typical divorce issues that are decided by a judge include:
a request for temporary child support or spousal support (alimony)
a temporary custody request
resolution of a parenting time (visitation) problem, and
distribution of a marital asset prior to the end of the divorce.
Of course, the most prominent decision a judge will make is the final ruling at the end of a trial. This decision will be incorporated into a Final Divorce Judgment, which encompasses all the outstanding issues in the divorce.
Disputing a Judge's Decision
Normally, a judge's ruling is going to make someone unhappy because—as a general rule—very few people walk away from a divorce getting everything they asked for. Often both spouses ask for the same thing—sole custody, a car, a home, or a particular stock. Since judge's can't simply split these items in half, one spouse may walk away feeling upset.
It's essential to remember that divorce is about compromise. For the most part, if you're unhappy with an outcome in your case, it's best to accept it and move on. Judges' decisions are usually guided by state laws. However, if you believe that your judge's decision is especially egregious, you may want find a way to overturn it. There are generally two ways to do this.
A Motion for Reconsideration
In a "motion for reconsideration," you're essentially asking the court to reverse its own ruling. Understand that this is not meant to be a reargument of the matter in the hope that somehow the court will change its mind. You have to be able to prove that the initial ruling was incorrect.
For example, if a judge overlooked a key piece of evidence in reaching the decision, that would likely constitute grounds for altering the original ruling. Other reasons could be where the judge misinterpreted a statute, or failed to apply pertinent case law.
However, even if the judge erred, you have to show that the mistake made a difference in the ultimate outcome of your case. If the court's ruling would have been the same even if it hadn't made the error, odds are you'll lose the motion for reconsideration.
Normally, a judge's ruling is going to make someone unhappy because—as a general rule—very few people walk away from a divorce getting everything they asked for.
Filing an Appeal
In an appeal, you ask a higher court—in this case, a court of appeal—to overturn a lower court judge's decision. You have the right to appeal "final" court orders. In divorce matters, this normally refers to the judgment at the end of the divorce.
Court orders that aren't considered final are referred to as "interlocutory" (interim) orders. A decision regarding temporary custody might fall into this category, for example. Taking an appeal from these types of orders is difficult.
There are two main reasons for this. First, you ordinarily need the court's permission to appeal an interlocutory order, and you'd have to present a very compelling reason to obtain that permission. Perhaps a situation involving potential danger to a child might pass muster, but less significant scenarios usually won't.
Second, appeals are costly and time-consuming. Taking into consideration attorneys' fees and court costs, an appeal can run into the thousands of dollars. Additionally, in the months that it customarily takes the appellate court to schedule the matter, the underlying problem may have already become moot. For instance, if you take an appeal late in the divorce process, the divorce may be over before the appeal can be heard.
You should note that an appeal isn't a second bite at the apple, especially in terms of trying to introduce new evidence. The appellate court's job is to determine: whether the lower court erred, based on what was presented at the trial, and, if it did, would the mistake have changed the outcome. If there was any reasonable basis for the lower court's ruling, an appellate court will almost always let it stand.
Time Considerations for Motions and Appeals
A state's divorce rules and regulations will tightly control the time frame for filing a motion for reconsideration or an appeal. Depending on the laws in your state, you usually have to file a motion for reconsideration within 10 to 20 days from the date you receive a copy of the court order. The time to file an appeal from a final judgment is ordinarily 45 days from the judgment date. However, these are very specialized areas of practice, so you shouldn't attempt to handle these procedures on your own. If you're considering appealing a divorce judgment, you should speak to a local divorce lawyer right away.
Article provided by Lawyers.com
Written by By Joseph Pandolfi, Retired Judge
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