Contesting a Divorce
Most divorces require a compromise from both spouses so that they reach a favorable settlement at the end of the process.
However, circumstances may develop in such a way that one of the spouses is not satisfied with the result of a divorce through a settlement agreement or a court decision. In this case, the spouse has the right to go to court and challenge the divorce decree.
Not all divorced spouses can go to court to challenge the divorce. For this, one of the parties to the divorce must have significantly good reason for applying, either in the form of unfavorable or dishonest conditions for divorce.
The exact legal evidence that must be presented to the court in order for a case to be reopened depends on specific state laws.
How to challenge a divorce decree?
A party that is not satisfied with the court's decision on its divorce must file an application for reopening the case with the court (motion or petition), where it will be necessary to indicate the reason why they want to reopen the case.
The Notice of Appeal must be filed within 30 days after the final divorce decree becomes effective.
After the court receives the Notice of Appeal, it is served on all parties - the Appeal Minutes, which includes the court transcript and the court record.
When initiating a review of a divorce case in court, married couples are required to go through the appeal mediation procedure. The spouse will need to prove that the settlement reached during the divorce process is unfair or invalid for any reason and try to resolve the disputed issues.
If the spouses could not agree on new conditions for divorce, then they proceed to the appeal process, which includes the filing of appeal briefs and oral arguments.
A court record - a record of all materials and information that was filed with the court in the original divorce case: documents, papers and pleadings, as well as any physical evidence or documents that were presented during the trial.
A court reporter transcript is a record of everything that was said by the witnesses, lawyers, judges, and other participants during a trial in a lower court while in the presence of a court reporter.
At the end of the appeal, the court will cancel or confirm the decision of the court of first instance, or return the case for a new trial.
Reasons why it is possible to challenge a divorce.
- Concealment or fraud;
Fraud is one of the most common reasons for reopening a divorce case.
If one of the spouses hid or provided false information about a material fact, such as the existence or real value of an asset, or, for example, they concealed money that was not taken into account in the division of property, then this may be cause for the reopening of the divorce case as it will be considered fraud.
- Coercion or undue influence;
This occurs when one spouse uses threats or coercion to force the other to accept and sign a settlement agreement in their favor. If it is possible to prove that a spouse forced the other spouse to sign the divorce papers under duress, then they can claim that the consent was invalid because it was not free and voluntary, therefore requiring a reopening of the divorce case.
For example, a spouse may use psychological pressure, blackmail, or threats of violence to force the other to accept an unfair divorce settlement.
An error made during a divorce may also allow the case to be reopened.
For example, an error regarding some fact or information that affected the outcome of the divorce.
- Fundamental inequality or injustice in the divorce agreement itself.
How long can a contested divorce take?
Appealing a divorce decision, after filing an appeal, takes a lot of time.
After the appellate court receives all the documents collected by you and your lawyer for a review of the case, it will make a decision.
Written decisions are issued within 90 days after the provision of all necessary information and documentation in the case.
But if the court decides that you need a new, separate hearing in your case, then the appellate court will transfer the case to the trial court. If this occurs, the challenge process may take much longer than originally expected.
Divorce Appellate Attorney
The appeal process has strict rules and regulations. Therefore, it is important for each party to consult with an attorney experienced in contesting a divorce in order to determine the next steps in order to obtain the necessary assistance in the appeal process.
A divorce lawyer will prepare an application for you to the court, detailing the reason for the appeal, and will collect and include all relevant precedents into the motion, as well as evidence or documents necessary for the reopening of the case.
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Family Court in New York
The New York State Family Court has a wide range of powers and is designed to protect the rights and take action in relation to the lives of children, parents and spouses.
Are family cases records public?
Litigation almost always involves confidential information that can be confidential and personal to all parties involved.