Steps in a Divorce Appeal
The judicial process isn’t perfect, and courts sometimes make mistakes. Errors can occur during the divorce process that may result in an unfair or incorrect outcome. Fortunately, our legal system offers the right to appeal a trial court’s decision. In the state of Nevada, the Nevada Supreme Court is the body that hears appeals related to divorce matters. All appeals must be filed within 30 days of the final divorce judgment.
To be successful in the appeal process, the appealing party, known as the appellant, must be able to demonstrate that a mistake or unusual circumstance resulted in an unjust or incorrect decision. Reasons to file an appeal may include:
- Rare or unusual circumstances that make the application of current case law impossible
- Misinterpretation of the law or abuse of discretion by the presiding judge
- Incorrect classification of an asset as community or separate property
- Failure of the court to take into consideration all assets when dividing property
- Mathematical error when dividing community property
- Incorrect evaluation of a spouse’s financial position when determining the amount of alimony payments
- Failure of a dependent spouse to take the necessary steps to improve his or her financial situation
- Notice of Appeal must be filed within 30 days of the filing of the order which is the subject of the appeal. The Notice briefly states the grounds for the appeal.A Settlement Conference may be required pursuant to Nevada Rule of Appellate Procedure 16 (NRAP 16). A judge will meet with the parties and their attorneys to try to settle the disputed issue and dismiss the appeal. If an agreement is not possible, the appeal goes forward. If the appeal is from an order terminating parental rights, a settlement conference is not required.
- The Appellant, who is the party appealing, files an Opening Brief. This is the written statement of facts and legal arguments prepared by the appeals attorney as to why the District Court’s decision should be reversed.
- The Respondent, who is the party not appealing, files an Answer Brief with facts and legal arguments as to why the District Court ruling should not be reversed.
- Oral Argument. Some cases are decided by the appellate court without oral argument. If an oral argument is scheduled, it is only for the attorneys to clarify issues presented in their briefs and to answer questions posed by the appellate judges.
- The Nevada Supreme Court issues its decision that either upholds the lower court ruling or reverses it. It may also remand the case back to the lower court with instructions on how to proceed.
When the appeal is filed, the other spouse, known as the respondent, is notified of the appellant’s action. The two parties (and typically, their legal representatives) then attend what is referred to as an appellate settlement conference in an effort to reach an agreement. If an agreement does not occur, the case goes to the Supreme Court.
The appellant must provide all relevant documents along with an opening brief to the Court, which must be submitted within a specified time frame. The respondent must answer with their own documents and supporting brief, also within a designated time frame. The Court may make a final decision based on the information provided. In some cases, the Court may also wish to hear oral arguments on the matter.
The Need for an Experienced Family Law Attorney
The appeal process in a divorce case can be lengthy, complex and cumbersome. An attorney with intimate knowledge of Nevada family law can help you navigate the process and possibly help you achieve a successful outcome.