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Information About Divorce Litigation and the Appeals Process

Divorcing couples are often encouraged to negotiate, mediate and settle issues to avoid having to go through a formal trial. By working to reach agreement themselves, couples retain the most control over the process and generally keep costs lower.

Sometimes, however, couples reach an impasse and are simply unable to agree on the terms of their divorce. This is when a divorce trial may become necessary. It is important to note that couples can reach agreement on most matters and only take isolated issues to trial. Examples of specific matters that couples may choose to take to a judge include: child support, child custody , parenting plans and alimony .

Appealing a Divorce Judgment

If either party is not satisfied with the judgment at the trial court they may appeal. The purpose of appealing a judgment is to determine if the trial judge made a material legal error. In other words, an appeal is not used to question a judge's factual conclusions, but rather to determine if the judge misapplied the law. The legal error must also be significant enough to potentially affect the outcome of the trial.

For instance, consider the situation where a judge determines it is in the best interests of the children that the mother be awarded primary physical custody. To win on appeal, the father would have to do more than argue that he is the better the parent and the children should primarily reside with him. He must prove the trial judge reached the wrong decision because the judge incorrectly applied the law during the trial.

Consider that during the trial the judge allowed several of the mother's witnesses to testify about her parenting skills, but did not allow any of the father's witnesses to testify. The father or his attorney should then object to the judge's refusal, and explain what the father's witnesses would have said on his behalf. This is called "preserving the record" and lays the groundwork for a potentially successful appeal by the father.

Under these circumstances it is likely the appellate court would agree with the father that his witnesses should be allowed to testify as well. The appellate court would vacate the lower court's judgment on that point, and send the case back to the trial court with instructions to allow the testimony of the father's witnesses. Winning the appeal would not automatically give the father primary custody, but he and his attorney would have another chance to argue their case with the additional witnesses.

Importance of Having an Attorney

The example above indicates how important it is to have a knowledgeable attorney represent your interests and advocate on your behalf during a trial. If you are going through a divorce, contact an experienced family law attorney. A lawyer can work to protect your rights and advance your interests.

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