Law Office of Bradley R. Tengler, P.C.

Factors Involved in Determining Whether or Not a Case Has a Strong Basis for Appeal

Depending on the situation, the attorneys involved, and the personalities of the divorcing parties, divorce proceedings can last for what can seem like ages. When the whole ordeal is finally over, it can be a huge relief. However, there are times where one (or both) parties are simply unable to live with the decision and they feel as though the judge made an error in interpreting the law. In this event, the parties have the option of appealing the decision to a higher court. Upon appeal, the case is again tried in the appellate court, and the decision of the lower court will either be affirmed or reversed.

Divorce proceedings almost always involve an unhappy loser. However, unhappiness alone does not mean the case is appealable. Many factors are involved in determining whether or not the case has a strong basis for appeal. Before an unhappy divorcee chooses to appeal the decision, he/she should consider the following:


1. An appeal must be based on an error in interpreting the law. Let's suppose you choose to appeal a decision by a judge to award your wife custody of the children because the judge believes it to be in the best interest of the children. In order to appeal this decision, you must do more than show that it would in fact be in the best interest of the children to live with you. You must show that the judge made an error in interpreting and applying the law to your case.


2. Your lawyer may only raise in issue on appeal which he/she objected to during the original trial. Before you choose to appeal an issue, you must check the record from the original trial to ensure that your attorney raised an objection on the issue which was then overruled, leading to the outcome which led to your unsatisfactory outcome. For example, let's say opposing counsel questioned one of his witnesses with the use of questions that assume facts which are not in the evidence, and your attorney fails to object. You are now precluded from raising an objection on that same issue at the appellate level.


3. Appeals are lengthy and expensive.  Divorce appeals vary in duration based on the amount of issues presented on appeal. With that said, the cost also varies based on the number of issues on appeal. Attorneys charge by the hour, and depending on the complexity of the issue, the attorneys could very well put in just as much time preparing for the appeal as they did preparing for the original divorce trial. One may, however, choose to hire a different attorney for the appeals process, which has its advantages and disadvantages. While the original attorney may be more familiar with the case, a new attorney may bring a new perspective to your case which may help you win upon appeal. Additionally, the Illinois Marriage and Dissolution of Marriage Act provides for the recovery of attorney's fees associated with the cost of appeal for the party who ultimately prevails in certain situations.


With that said, it is not unheard of for a party to appeal a divorce decision and successfully have the decision reversed in his/her favor. The bottom line is that a choice to appeal a decision must be made with careful thought and with the guidance of an attorney. Additionally, petitioning the appellate court to grant your leave to appeal the decision of the trial court is not the only way in which you may have your case re-considered.


For more information on appealing a divorce decree, feel free to contact The Law Office of Bradley R. Tengler in Rockford, IL at 815-981-4859 for a free consultation. Please note, the above does not constitute legal advice. Please discuss your specific rights with an attorney in your own jurisdiction.

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