You Have Legal Options If Your Final Divorce Order Isn’t What You Wanted
Second-guessing is human nature. It’s also a nagging part of the divorce process. And sometimes the questions about the final results and conditions of a marital dissolution are justified.
If after the divorce is granted, you believe you got a bad deal, you do have some options.
MODIFICATIONS
Regardless of whether your divorce issues are settled by both parties or determined by a court, sometimes things change. In these cases, you can seek modifications to the settlement terms or court orders.
The key in seeking any modification is to show that there has been a change in circumstances. Post-divorce decree modification requests typically center on child custody and/or support, both for the minor children or an ex-spouse.
There is no firm, universal standard as to what constitutes a change of circumstances. The legal standard generally is that the changes be “material and substantial.” However, some common situations that courts typically hear in modification requests include:
- Relocation, especially to another state.
- Other matters that are in the best interest of the child or children.
- Loss of job.
- Increase or decrease in income.
- A change in one of the party’s health.
- Unsuitable environment for the children, both in the custodial setting or during visitations with the noncustodial parent.
- Unforeseen expenses, such as emergency medical expenses.
- Substance abuse by one of the parties and/or his or her associates.
These situations can affect either party. For example, the former spouse making payments might find that the change in circumstances means that he or she can no longer afford the amount of support payments previously ordered. Or the custodial spouse might show that visitation should be limited because the noncustodial parent is exposing the children to inappropriate situations.
If you find you have grounds for seeking a modification order, contact your attorney to begin the process. Some lawyers specialize in divorce decree modification orders.
Note, however, that in most jurisdictions, even if a change in circumstances is proven, any court-ordered accommodations to the change will be prospective, not retroactive. That is, any support new amounts or rules governing the divorce will take place when the modification order is entered and will not address any issues encountered before it took effect.
APPEAL
After the trial, if either party is unhappy with the final divorce judgment, either or both may appeal.
An appeal, however, is not a way to question the judge’s factual conclusions. It is to determine whether the divorce judge made a legal error in reaching those conclusions. A noncustodial parent, for example, cannot simply challenge the judge’s finding that the children live with their other parent. On appeal, the noncustodial parent must show that the judge’s decision was based on a law-based mistake, such as allowing inadmissible testimony on the matter.
An appeal relies primarily on written arguments, or briefs, submitted by the party raising the issue. The document spells out the legal argument, supporting it with references to applicable case law and statutes. Similarly, the opposing party files a brief arguing that the judge’s original decision was correct. Oral arguments also sometimes follow to elaborate on the points raised in the briefs. Appeals court decisions typically rely on the original court’s written record. New evidence usually is not allowed.
In addition, settlement agreements to which both spouses have agreed usually cannot be appealed. But, as discussed earlier, modifications to the settlement terms might be warranted.
Also keep in mind that all judges are cognizant of appeal possibilities and generally are careful to avoid situations during the divorce trial that could be grounds for an appeal. Most court judgments, including those in divorce court, are sustained on appeal.
If you still wish to formally question your divorce judgment, find an attorney who is experienced in the appellate process, and one who has particular knowledge of the legal issues you’ll be raising on appeal.
And be ready to pay. Appeals can be expensive, starting with the cost of your divorce trial’s transcript to fees for your attorney and associated to examine that material and prepare briefs. Depending on the appeals court decision, you also might end up paying for your spouse’s lawyer to do all the same things. A rough estimate is that you’ll spend on appeal around the same amount for legal services during your original divorce trial.
