NJ Family Law judges are given tremendous discretion in making decisions regarding custody, support, division of assets and debt, and in assessing counsel fees. The court’s decisions are sometimes very easy to understand and based upon the prevailing statutory and case law, whether we think the law is fair or not. However, sometimes the decisions are either not based upon the facts at all, not based upon the existing law, not fully explained in a way the litigants can understand, or are simply based upon the judge’s belief system. When you get a NJ Family Law Order that you believe is not fair, what are your options?
When you get a NJ Family Law Order you do not like, you have three options.
First, you can simply accept the court’s decision. If this is a decision at the end of Trial, you likely just spent a large sum of money on your attorney to conduct the Trial and an appeal, with an uncertain outcome, will cost you more of your money. If this is a decision post-judgment on a modification motion of some kind, you need to remember that you are not prevented from making another application in the future as facts warrant.
Second, you can file something called a Motion for Reconsideration. These motions are meant for limited circumstances where either the court failed to consider material facts or apply the correct law. They are not intended or allowed in situations where you simply disagree with the court’s decision.
Third, you can file an appeal. NJ Family Law Appeals are involves a very long and costly process to find out if two or three appellate court judges agree or disagree with what the trial court has decided. Appeals can easily take a year or more, with 13 months being the median length of time. In most circumstances, the trial court decision will be implemented while your appeal is being processed through the system.
Chances of an Appeal
In our practice, we encounter very few cases where an appeal is appropriate. The probability of success on an appeal is relatively low. More than 70% of all NJ Family Law Appeals are affirmed, meaning that the trial judge’s ruling is not changed. That percentage is high because the appellate court tries to find a reason, any reason, to sustain the trial court’s decision. Also, it is important to note that in the less than 30% of cases where the appellate court decides to overrule the trial court on at least one issue, not all decisions are favorable to the litigant who appealed. The appellate court can completely reverse a trial judge and make a new decision, but that is rare. More common, the appellate court explains what the trial court missed, incorrectly decided, or what the law should be and sends the case back to the trial judge to consider additional information and issue a new decision. We call this process a “remand”. Therefore, the same judge that you just appealed is given another opportunity to make a decision, albeit with the watchful eye of the appellate division standing overhead.
You should only consider an appeal when the trial judge makes a very large and easily provable error. It should be something that can be shown to have had a material effect on the ultimate outcome of the case. However, be careful! The appellate division will look through all of the documents and testimony and try to find an alternate reason to reach the same conclusion as the trial judge. When appealing, the cards are stacked against you, which is why NJ Family Law judges have exceptional power in making decisions about your life.
NJ Family Law Appeals can be very costly. The transcripts alone can be thousands of dollars. In terms of counsel fees, you can expect an appeal to average $15,000. If you are appealing an Order on a motion, it could be less than $10,000, and if you are appealing an Order after a long trial, it could be well more than $20,000. We will sometimes do flat fees if we handled the case at the trial level and are already familiar with the facts, but the process is expensive regardless.
NJ Family Law Appeals are not for everyone or for every case. If a judge is making a decision, it is certain that one or both of the litigants will disagree with the Order. However, in not settling your case, you have put your life in the hands of a person in a robe who has the power to make decisions about your life. If the judge makes a decision not based upon facts or misapplies the law, you may be able to get that judge reversed. We can review your case and give an honest assessment of whether an appeal is appropriate. Remember that the vast majority of Orders entered by NJ Family Law judges will never be overturned on appeal, so keep that in mind when your attorney tells you that settlement is always the best route to go and encourages you to compromise to resolve your case.