For divorced women who want to change their final decree, understanding the differences between an appeal and a motion to modify divorce decree is essential. This article will help you understand the differences between these two methods and which will best serve your needs.
What’s the Difference between an Appeal and a Motion for Modification?
By Sarah J. Jacobs, Esq.
Whether it’s child support, a divorce agreement, or spousal support, receiving an unfavorable decision in your family law matter can leave you feeling defeated.
But the story may not end there—even if you are feeling overwhelmed, we want you to know that you have options. Depending on the facts involved that lead to such an outcome, there are multiple legal processes available, including filing an appeal or a motion for modification.
Each of these processes is unique, with different strategies, filing fees, and basis for filing. If you’re wondering which route is most appropriate for your situation—or whether you meet the standards for any of them, keep reading for a crash course on the basics of appeals and modifications.
Appealing a court ruling
If you believe the judge’s final ruling on your family law matter was legally flawed, you may be able to file an appeal. An appeal is a formal request for an appellate court in NJ to review a decision made in a lower court, called a trial court, and in NJ, called the Superior Court.
Potential circumstances for an appeal
The appellate court of NJ won’t grant you an appeal simply because you aren’t happy with the outcome of your legal matter. Instead, you’ll need grounds – a sound legal basis – for filing an appeal, such as an error or abuse of discretion by the original judge.
Grounds for appeal that may be accepted by an appellate court in NJ include:
- Trial court judge made an error of law – If the judge applied the wrong legal standard or failed to apply a relevant legal standard, you’ll have the strongest grounds for an appeal.
- Trial court judge made an error of facts – This ground for appeal can be difficult to establish, as the court’s records must clearly demonstrate the error and be a reason that the ultimate decision or outcome was flawed.
- Trial court judge abused their discretion – This can apply to many types of errors made by a trial court judge if the evidence clearly does not support an unreasonable final decision. However, an appeal on these grounds is harder to achieve because it’s difficult to produce hard evidence that a judge abused their discretion.
Filing an appeal
Timing matters when filing an appeal. Typically, if the decision you believe was flawed was considered “final,” you have 45 days after it’s entered to file your appeal. If you’re appealing an interim decision, which has a high burden to prove, you have 20 days from the entry of the order or decision to file your appeal.
During the appeals process, your attorney won’t present new evidence, and you won’t testify on the stand. Instead, your attorney will submit a detailed legal brief outlining the issues that occurred with the trial court’s process or decisions, and the reasons, or grounds, for the appeal.
The appeals process can take up to a year to finish in its entirety. It can be lengthy, and it carries a high burden of proof and no guarantee of a more preferable legal outcome for you. It also generally doesn’t end with an outcome other than a determination on whether the trial court made a mistake, and if so, how the matter should proceed.
That being said, an appeal could lead to a new trial or a repeat of your final hearing — the results of which may differ from the first. Explore your options carefully alongside your attorney and discuss how your options align with your goals, both short- and long-term.
Deadlines and rules for appeals
An appeal “as of right” can only be filed after a final decision, even if the error in question occurred early on in the trial.
Once you receive a final decision on your legal matter, you have 45 days to file a notice of appeal. After that date, in order to appeal, you have to ask the Appellate Division to accept your application out of time, which requires the right paperwork, among other things.
Under certain circumstances, you can appeal what’s known as an Interlocutory Order (one that is not considered final) but these are hard to formulate, and you need to file a separate motion asking the Appellate Division permission to move forward with your appeal, which often isn’t granted.
Many clients mistakenly assume that pursuing an appeal stops a court order from going into effect. It’s important to remember that any court order that results from legal action may be enforced and even if you don’t agree with it, it’s crucial that you follow the existing court order during this time and throughout the entire appeals process. You may, however, be able to file for a stay during the appeals process, which temporarily lifts the court order.
How does an appeal differ from a modification?
Filing for a modification to change an existing order doesn’t demonstrate that there was something wrong with the trial court judge’s final decision. It’s simply one course of legal action if your current agreement or a court’s prior order is no longer suitable for your family.
There is a different filing fee for a modification versus an appeal. A modification also requires different grounds and a different process than filing an appeal. Instead of contacting an NJ court of appeals, you’ll be contacting the same family court where your original court order was issued.
Potential circumstances for modification of a divorce decree
Generally, the court will only grant a motion for modification if you can prove that the circumstances for you, your child, or the other parent have changed permanently since the original court order.
These changes may include:
- One parent gets a new job that creates a substantial financial change
- Major relocation for work or other reasons
- One parent remarries
- A new or worsened health condition
- One parent develops a criminal history
- Signs of abuse or neglect of the children
Motion to modify divorce decree timeline
You can file a motion for modification at any time after a court order, such as a divorce or child support agreement, has been established—as long as there are grounds to support the motion.
Timelines can vary depending on your individual circumstances and needs, so it’s difficult to guess exactly how long it might take to modify a court order. In addition, spousal support, custody and parenting time, and child support can be contentious issues. The length of time it takes to achieve a modification is largely dependent on how willing the other party is to cooperate with the process or how delayed the court system is with reviewing and ruling upon your application.
It’s possible to resolve a modification through Alternative Dispute Resolution (ADR). ADR can offer a more collaborative, personalized approach to modifications, and timelines are often more expedient.
How to know if you need an appeal or modification
If you’re uncertain whether an appeal or a
motion to modify divorce decree
is appropriate for your legal scenario, consider:
- How much time has passed since the original court order was established
- The reason you want to change the order
- Your budget (financially and time-wise)
- The desired outcome
Then, contact a skilled family law attorney who can walk you through the pros and cons of each option for your unique legal situation.
Sarah J. Jacobs is a Family Law attorney, mediator and co-founder of Jacobs Berger. At Jacobs Berger, we understand the importance that the right legal strategy plays in both appeals and modifications. We’re dedicated to understanding your goals and laying out your options for achieving them.
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