You file a petition for divorce, work through the divorce process, and after the judgment is issued by the judge, you seek to appeal an aspect of your divorce. You realize that an appeal of a divorce judgment does not stop the required ninety day period, nor does it stay provisions related to custody, visitation, support, or property division. You want to know, however: when can you appeal your divorce and what do you need to prove to win?

An appeal at the conclusion of a case occurs when one party in a case requests a higher court to reverse a decision of a lower court. In the area of divorce and family law, someone can appeal a decision made by a lower court, but the success of these appeals is rare. If someone appeals a decision by a lower court, the Probate and Family Court, the Appeals Court hears the issue on appeal.

An appeal can occur in the divorce and family law context if the lower court judge abused his or her discretion in making his or her decision. In reality, justices of the Probate and Family Court, where divorce and family law cases are heard, have wide latitude in their decisions. Therefore, it is unlikely that a trial judge’s order would be overturned by arguing that the trial justice abused his or her discretion. But an overturn is not impossible. As such, appeals may be appropriate in family law cases if the trial judge abused his or her discretion in the determination or crafting of his or her order, or decision.

In order to determine whether a judge abused his or her discretion, the Appeals Court must determine that the trial judge made a clear error in judgment in weighing the facts presenting in the case. The Appellate Court will not determine that a judge at the trial abused his or her discretion if the findings of the lower court are not clearly erroneous.

If a person wants to appeal a divorce, he or she would need to first work with his or her family law attorney. The attorney would work to file a Notice of Appeal within 30 days of the lower courts judgment. This process may be lengthy as time is required for the clerk to send the notice to the appellate court and the attorneys to prepare their briefs.

There is another type of appeal that is useful for parties in the middle of litigation. You may have heard of procedural tool known as an “interlocutory appeal” and wonder what it is and how it differs from an appeal at the end of a probate and family law case. In this instance, a judge can issue an order in the middle of a case that may threaten the entire case or be harmful to the case. Interlocutory appeals allow a party to appeal the judge’s decision prior to the conclusion of the case. These appeals occur when the party moving forward with the appeal shows the court that if the order or decision is applied, it would have consequences that would not be able to be remedied through a regular appeal at the end of a case. Most cases from the Probate and Family Court are filed and then heard by only one justice in Massachusetts.[1] It is not easy, however, to persuade one justice to vacate a matter in the Probate and Family Court against another justice, most likely a colleague.

Many wonder about the applicable standard for winning the appeal. In other words, what must a party do to win on an appeal? An appeal is not an opportunity to retry a case. It is an opportunity to review the order or decision in light of the evidence present in the court. The court looks at the brief and determines whether there is a clear error or abuse of discretion.

If you have any questions, thoughts, or concerns about issues related to appeals, divorce, the appellate process in Massachusetts, or family law, you should find a licensed attorney competent to practice law in the Commonwealth. Our experienced professionals may be able to work on behalf of you. Please contact our offices at your earliest convenience by phone at 866-995-6663 or complete a contact form on our website. We will return your inquiry with prompt attention.

[1] M.G.L. c. 231, s. 118