Sometimes one or more parties to a divorce will be unhappy with the results of the divorce order and may wish to have the result reconsidered. For whatever reason the question becomes “can you get a divorce reversed?”. This process of having the order reconsidered is done by “appeal”. Appeal is not a re-trying of the facts, however. Appeal is a process where a higher court looks for an error by the trial judge such as misinterpreting the law or allowing into evidence something that should not have been. For example:
Sally and Tommy go to trial for a divorce. They each bring witnesses to state which of them would be a better parent to little Roger. The judge allows all of Sally’s witness to testify but does not allow but one of Tommy’s. His reasoning is that “one witness is enough. They will all say the same thing anyway.” Tommy’s attorney objected at trial, told the judge what these witnesses would say if they were allowed to testify, but the judge still would not allow them to testify. On appeal, the appellate attorney would state that the trial judge erred by not allowing these witnesses.
How does the Appeals Process Work?
Appealing a trial case is not a fast or simple process. First of all, cases are only appealed on errors of law or evidence. In addition, those errors must be “preserved” for appeal during the trial. For example, the trial attorney must make objections when appropriate. It is very important that the trial lawyer tell the trial judge what witnesses would say If the lawyer doesn’t object, thus giving the judge an opportunity to correct the mistake, the issue cannot be raised later in the appellate court. In the example above the trial attorney “preserved the record” by objecting and offering the substance of the testimony.
If the appellate court decides there were errors with the trial court, they may throw out the original court order and remand – send back down to the lower court for a new trial, allowing the witnesses to testify (in our example above). This is not a quick fix because the appeals process often takes over a year.
How is the Appeals Process Started?
Not every lawyer is an appellate advocate. The appeals process is largely done by writing in Massachusetts. The appellate attorney reviews all of the information from the trial and submits a writing to the appeals court asking for the decision of the lower court to be set aside or changed in some way. Very often, the decision may be based on this written appeal. Therefore, it is very important that the attorney has experience in evidence and trial as well as legal writing and appellate advocacy.
If you have questions about your divorce order or need advice on an appeal, contact Christine. She has the experience, compassion and advocacy skills to help you.