Can you Appeal a Divorce?

To answer this question, we need to first clarify what an appeal is before discussing how you can appeal a divorce—and when an appeal may be worth it in your case.

What is an appeal?

The courts in Colorado have a hierarchy, with lower courts being bound by decisions made in higher courts. Sometimes, if a party feels like a lower court made a mistake, it can ask a higher court to fix that error. This is the purpose of an appeal.

In Colorado, most of the issues important in a divorce are decided by a Magistrate Judge or District Court Judge. When the particulars of a divorce are contested (such as the allocation of parental responsibilities), the Magistrate or District Court Judge usually holds a hearing where witnesses testify, evidence is presented, and arguments are made. Afterwards, the court issues a written decision deciding these matters, called the Permanent Orders.

Once the trial court has made a final decision, you can ask a higher courts—here, the Colorado Court of Appeals—to review that decision to ensure that the law was followed or that the decision is supported by the evidence. To do this, a party files a Notice of Appeal. Unless post-trial motions are filed, the Notice of Appeal must be filed within 49 days of the final order. This begins the appeal process.

Please note that you are only allowed to appeal a final order. Temporary orders (such as temporary allocation of parental responsibilities) cannot be appealed by filing a Notice of Appeal. Instead, you must file an interlocutory appeal (or file a petition with the Colorado Supreme Court). These procedures are nuanced, but an experienced attorney can discuss the costs and benefits of appealing temporary orders with you.

Once a Notice of Appeal has been filed, the record will be designated and sent to the Colorado Court of Appeals. What is the record? The record consists of all the filings, admitted exhibits, written decisions, and transcripts of testimony in the trial court. That’s it. If the crucial piece of evidence you’re relying on is not in the record, chances are that the Colorado Court of Appeals will never see it. That is one reason why it is incredibly important to have an experienced trial attorney who understands how to “preserve the record” for any potential appeal.

Unlike trial courts, the Colorado Court of Appeals does not hold hearings, listen to witness testimony, or allow new evidence. Rather, the Colorado Court of Appeals will decide the issue on the record alone.

After the record is transmitted to the court of appeals, the party appealing the order (called the Appellant) will draft a written brief to present arguments to the panel of judges that will decide the appeal. This is the Opening Brief. The responding party (called the Appellee) will then file an Answer Brief. If appropriate, the Appellant will then file a Reply Brief.

After that, the matter is considered fully briefed. Unless oral arguments are requested, a panel (usually consisting of three judges) on the Colorado Court of Appeals will decide the matter. There is no timeline on how long this can take, although it often takes several months. Once the Colorado Court of Appeals decides a matter, the only court that can overrule them is the Colorado Supreme Court. If a party is unhappy with how the Colorado Court of Appeals ruled on an case, he or she can file a Petition for Certiorari with the Colorado Supreme Court to ask that they take on the case and issue a different ruling.

How can I appeal a divorce?

Turning to the narrower question of appealing a divorce, it is important to discuss exactly what you can appeal.  Can you appeal the separation from your partner and force them to stay with you? No.

But you can appeal the final order (often called “Permanent Orders”) that decides the separation of property, any spousal maintenance payments, child support payments, and the allocation of parental responsibilities.

When looking to appeal, there are some things you should consider. First, there are different standards of review that the Colorado Court of Appeals applies when deciding the outcome of an appeal. This is important to consider because it can oftentimes determine how difficult it will be to prevail on an appeal.

If the matter involves a question of law or contract interpretation, then the judges on the Colorado Court of Appeals will apply a de novo standard of review. This means that the panel of judges on the court of appeals looks at the issue with new eyes and does not afford the trial court judge any deference. They will review the law or language of the contract (or separation agreement) and apply that interpretation to the facts of the case in making a decision.

However, if the matter involves a question of fact, the court of appeals will give a lot of deference to the trial court and review the issue for an “abuse of discretion.” They do this because they understand that Magistrates and Judges in the trial court must make difficult decisions at times. That is their job. Even if you are extremely unhappy with the decisions the judge made in your divorce, you may not be able to appeal them. The only way to win under this standard of review is to show that the trial court abused its discretion in making that decision—that is, that the decision was arbitrary, capricious, or unsupported by the record. This is a difficult standard of review to succeed on and often requires an attorney who understands how to thoroughly review the record to show that the trial court’s decision was an abuse of discretion.

Second, you should consider that appeals can be slow and expensive. Appellate cases are very different than trial cases and require a different set of advocacy skills—including record review, familiarity with the appellate standards of review, brief writing, and oral advocacy in front of a panel of judges.

Finally, you should consider whether there are alternative routes to achieve your goals—either through negotiation or through continued litigation in the trial matter.

I want to move forward with an appeal

Just because appeals can be difficult and expensive does not mean that you should give up if the trial court made a clear legal error or issued an order in your divorce that was completely unsupported by the evidence.

The attorneys at Belzer Law are experienced appellate litigants and understand how to review the record to make the strongest possible arguments on appeal. If you are unhappy with your Permanent Orders and feel that there was a legal error made in your case, please call Belzer Law today to discuss specifics. Our attorneys can explain the appellate process to you, including all applicable deadlines. Moreover, our attorneys will provide a candid assessment of your appeal after reviewing the record so that you know what the costs and benefits are in moving forward with an appeal.