Family Law Appeals
Appellate law is a specialized area of the law with its own technical rules and procedures. After a trial and a final order has been issued, one party may be dissatisfied. Usually, parties will file a motion to amend the order, setting out how the judge made a mistake. If the judge did in fact make a mistake, it should be brought to his or her attention so that it can be corrected. Generally, judges do not grant motions to amend since they have already considered the issues when they issued the final order. Once the motion to amend has been ruled on, the dissatisfied party has thirty days to file a notice of appeal with the South Carolina Court of Appeals.
A notice of appeal delays the ruling of the Family Court until the appeal is over. If a party is contesting the divorce itself, the parties may not be divorced. All matters of property division are put on hold which means that the parties are in pretty much the same situation regarding property division they were at the beginning of litigation. Child support, alimony, Custody Orders are not put on hold.
The dissatisfied party may file a petition for writ of supersedeas which asks the Court of Appeals to supercede, modify, or change the Order while the matter is being appealed. Generally, the Court of Appeals does not grant these petitions; however, the court has changed custody to the other parent pending a hearing on the appeal. The court can even change the amount or the liability of alimony or child support.
The appellate process is not a quick process. The process can take anywhere from one to three years. The family law attorney has to order the trial transcript from the court reporter which can take up to six months to receive the transcripts. Once the attorney receives the transcripts he or she has various periods of time to file the initial brief, then the opposing attorney has various periods of time to file the response brief. The time for the briefs to be filed can be extended and are many times.
Another potential problem that can make the appeal process take longer is bankruptcy. When people find themselves in a poor financial situation or a husband who is not happy with the result in Family Court sometimes will resort to bankruptcy. Bankruptcy court is a federal court which takes precedence over state court which means that everything in state court will be delayed until the bankruptcy proceedings are complete. The judge can modify alimony or child support payments, stay any transfer of property and manage the bankrupt's estate according to the bankruptcy laws.
Sometimes a bankruptcy judge will reduce the alimony and child support so that the debtor is able to pay off his or her debts. Recently, Congress has recognized that the bankruptcy laws should not be used to interfere with the orders of Family Courts. Unfortunately, family law lawyers are not specialized in the bankruptcy area so a bankruptcy attorney will have to be hired to protect the husband or wife's interests.
If you are dissatisfied with your final order from the family court, please call one of our experienced South Carolina Appeal attorneys at The Mace Firm.