THREE THINGS TO CONSIDER BEFORE YOU DECIDE AN APPEAL OF YOUR DIVORCE IS YOUR NEXT CHOICE OR EVEN THE RIGHT CHOICE
After you received a Final Judgment dissolving your marriage, you probably felt a multitude of feelings ranging from relief to sadness, which are all normal feelings after a divorce. You may also feel that the Final Judgment did not fairly divide your marital assets or debts, or sufficiently provide for your support in terms of the amount or length of alimony. On the other hand, you may be the spouse who is ordered to pay alimony or portions of other spouse’s attorneys’ fees, and feel that the judge did not properly consider all the facts in your case. In either case, if you feel that the Final Judgment is grossly inequitable, here are THREE things to consider before you take the step to file an appeal .
First , the time constraints on when you can file an appeal is important. While you have fifteen (15) days from the filing of the Final Judgment to request that the judge re-hear your case, this does not necessarily mean that the time to file an appeal of the Final Judgment will be tolled or suspended. You need to make sure that you are seeking a re-hearing from a Final Judgment that is “final in nature.” Normally, you have thirty (30) days from the rendition of the Final Judgment to file a Notice to the appellate court of your intent to appeal and pay the filing fee.
You may decide that because of the time constraints you want to forego seeking a re-hearing and simply seek an appeal of the Final Judgment. One caveat to doing this is that where your appeal is based on the judge failing to find specific facts supporting the Final Judgment, it has been established that the appellate court will not reverse the Final Judgment unless a re-hearing is first entertained and rejected. But, where your appeal is based on the argument that there is a lack of sufficient evidence supporting the Final Judgment a motion for re-hearing is not required.
Second , it is best to consider the type of “standard of review” the appellate court will apply to your appeal. In most appeals of a Final Judgments dissolving a marriage, the appellate court will utilize an abuse of discretion standard. An abuse of discretion standard is a low standard that requires the appellate court to reverse portions or all of the Final Judgment award, including alimony , child support, attorneys’ fees, or equitable distribution award only if it finds that the trial court abused its discretion. However, where the judge incorrectly applied the law to the facts of your case or interpretation of the law, then the appellate court can review your Final Judgment de novo or as if, the appellate court was retrying your case.
Third , an appeal process takes time, on average, a year to two years. This is because after a notice to the appellate court is filed, you have seventy (70) days to file a brief detailing your arguments, then your ex-spouse has twenty (20) days to file an answer to your brief, and finally, you have twenty (20) days to file a reply to your ex-spouse’s answer brief. Each side can also seek extensions of time to file their briefs, which extends the appeals process even further. Also, either side can request that the parties be given a chance to orally argue their side before a three panel judge.
Whether an appeal should be your next choice, or the right choice, requires consideration of many things including the time, expense and the overall outcome you wish from an appeal. Contact our offices at (386) 253-1111 for more guidance and advice on whether you should seek an appeal and what to expect from your appeal.
Recent Florida Case Law Rejects Disabled Husband’s Request for Permanent Alimony Finding That He Could Earn Income from His Non-Liquid Assets.
In a recent case out of the Florida’s Fourth District Court of Appeal , the appellate court affirmed the trial court’s decision to deny the husband permanent, periodic alimony. The parties had been married 17 years and the husband was unemployed receiving Social Security Disability benefits but had a total net worth of over $1.3 million consisting of real estate, financial holdings, and retirement plans. The wife was grossing over $10,000 per month in income and had a net worth of over $600,000. The trial court imputed income to the husband based on a 3% investment rate of return on his real estate and financial assets, including his non-liquid assets, and based on the imputation of income, found the husband did not have the need for alimony.
In upholding the trial court’s ruling, the appellate court acknowledged that while the law was not clear on the issue of whether a trial court should impute income based on a reasonable return on a former spouse’s non-liquid assets, it was not an abuse of discretion to do so. The appellate court went on to state that a contrary rule would simply encourage spouses with substantial non-liquid assets to engage in strategic gamesmanship, such as delaying the liquidation of their assets, for purposes of advancing or defending alimony claims.
The implications of this case is great. It could mean that a spouse is not entitled to alimony despite his lack of income where he owns substantial non-liquid assets, such as a retirement account. However, the appellate court seems to suggest that the imputation of income from non-liquid assets is only reasonable when it applies to assets that are typically investment assets and does not require the spouse to invade the principal of his assets.
If you think that your divorce judgment is inequitable and you need legal advice on appealing it, please contact us .
By Carol Yoon- Associate Attorney
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