Appeal or Motion to Modify? What to Do If You Don’t Like the Judge’s Decision / by Cassandra Hearn

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Every party to a divorce or custody action is eager for the day when the case is finally over. Litigation is expensive and exhausting, so receiving closure by getting a final decision can be a welcome relief. Unfortunately, not every divorce or custody order brings good news. In some cases, you may find you strongly disagree with the judge’s decision. There are two ways to approach an unfavorable outcome after a trial - appeal or a motion to modify. The two approaches are very different in strategy, timeline, and cost, so it is important to have a basic understanding of the two. 

An appeal is one possibility if you do not like the result of your trial. However, an appeal is not a new trial, and you will not be presenting the evidence or testifying over again. In an appeal, your attorney will write a legal brief to a panel of judges explaining what mistakes the trial judge made in the trial that already occurred. If your attorney is successful, the typical outcome is that you will have to do the final hearing over again. An appeal is an action that you will take immediately following the entry of your divorce or custody order. Appeals have very strict deadlines and rules. You will have only sixty days to file a notice of your intent to appeal. If you miss that deadline, it is likely an appeal will be impossible. An appeal is a long and expensive process, but the advantage is that you may end up getting another chance to try your case over again and hopefully get a better outcome. 

A motion to modify is a totally different procedure. For a motion to modify, you will return to the trial court. You must prove that since the entry of the last order, there has been a material change in circumstances. In most cases, this means you will have to wait a fair amount of time for such a change to occur. In the meantime, you must abide by the unfavorable order. Once a material change has occurred, you will file a new case with the court seeking to change the old order, and your new case will focus on what has changed since the old case.

The decision to appeal an order versus waiting to file a motion to modify is a difficult one. Appeals can be a long and expensive process, and getting a decision overturned on appeal is exceedingly difficult. However, waiting for a material change to occur is also by no means certain, as that change may never happen.

The differences, advantages, and disadvantages between appeals and motions to modify are issues you need to discuss with an experienced attorney. We have helped many clients with this process. Contact us today at (619) 800-0384 for a meeting.