Appeal Versus Modification

The final hearing is a destination that all parties involved in a family law case dream of reaching. The final hearing means the whole situation is finally at an end and the parties can obtain closure and move forward with their lives. But what happens when the final order does not end up going your way? There are ways to approach “losing” a family law case. The two primary ways to tackle the issue are appealing or filing a modification.

An appeal means that you are asking a higher court to review the decision made at the trial level and overturn that decision. Appeals have very strict deadlines and requirements, and the failure to adhere to those requirements often leads to harsh penalties, such as the wholesale dismissal of your appeal. You have forty five days after the final order is entered to file your notice of appeal. If you decide to appeal, your attorney will write a brief to a panel of judges. The judges may want to hear your attorney in person on the issue, or they may simply render a decision based on the briefs submitted. Either way, the important issue to remember is that the decision will be based on the testimony and evidence at trial. An appeal is not a new trial. It is your attorney asking a higher court to correct a mistake made by the trial court at the trial. If you are successful in your appeal, the typical result is that you receive a new trial, which allows the mistake made by the trial court to be corrected. Winning an appeal in family law is not particularly common.

A modification, on the other hand, means starting an entirely new case. Filing a modification in New Jersey means you must show there has been a substantial, permanent, and unanticipated change that has happened since the last order was entered. You must also show that this change warrants the permanent modification of the prior order. Modifications are fairly common procedures, especially in the case of parents needing to modify a custody order as a child ages and his or her needs change. The nature of a modification means you must wait after the entry of the final divorce or custody order until a material change of circumstances takes place.

An essential difference between an appeal and a modification is timing. An appeal must be taken very quickly after the entry of the order, whereas a modification typically does not happen until years later. You need to carefully consult your attorney before deciding which of these options is right for your case.

If you have questions about whether you need to appeal or modify your divorce or custody order, contact us today at (732) 529-6937. understand the process and guide you in your decision.