Matrimonial law generally and all appeals derived from matrimonial actions can be tough to navigate. Matrimonial appeals arise out of divorce proceedings, child custody rulings, equitable distribution of property, maintenance, and various other matters ancillary to a divorce proceeding.
With a few exceptions, parties may appeal any decision if it substantially affects the merits of the action. The term “substantially affects the merits” is taken directly from the Civil Procedure Law and Rules. This rule permits litigants to appeal most decision and orders of a trial court judge without having to wait for a final decision in their matter, and bring something called an interlocutory appeal.
This right to an appeal, however, does not apply to decisions handed down in family court. If for instance, a family court judge or referee grants temporary child custody to a party pending the outcome of a final hearing in family court, the party adversely affected by this decision must first obtain a leave (permission) to appeal that decision. They may not automatically appeal that decision as they could in most other matters. In that regard, appeals derived from non-final family court decisions must be handled with particular care.
All matrimonial actions pending in Supreme Court, however, generally receive an automatic right of appeal to the appropriate Appellate Division. The Supreme Court handles all actions for divorce, and any custody, property, equitable distribution, or maintenance issues that arise out of a divorce proceeding. We’ve handled several complicated matrimonial appeals dealing with equitable distribution, maintenance, and pre-nuptial agreements.
Because an automatic right of appeal exists, does not mean that one should automatically appeal a decision. A matrimonial appellate attorney's primary duty to a client/potential client is to perform an appellate assessment and inform the client of their likelihood of success. Appeals can be expensive and your decision should be based upon sufficient knowledge.
The Appellate Division Judicial Department that will hear your appeal depends on the location of the Court from which the decision you are appealing originated.The First Department hears appeals from decisions of trial Courts located in Bronx County and New York County. The Second Department hears appeals from decisions of trial Courts located in Dutchess, Kings, Nassau, Orange, Putnam, Queens, Richmond, Rockland, Suffolk and Westchester counties. The Third Department hears appeals from decisions of trial Courts located in Albany, Broome, Chemung, Chenango, Clinton, Columbia, Cortland, Delaware, Essex, Franklin, Fulton, Greene, Hamilton, Madison, Montgomery, Otsego, Rensselaer, St. Lawrence, Saratoga, Schenectady, Schoharie, Schuyler, Sullivan, Tioga, Tompkins, Ulster, Warren, and Washington counties. The Fourth Department hears appeals from decisions of trial Courts located in Allegany, Cattaraugus, Cayuga, Chautauqua, Erie, Genesee, Herkimer, Jefferson, Lewis, Livingston, Monroe, Niagara, Oneida, Onondaga, Ontario, Orleans, Oswego, Seneca, Steuben, Wayne, Wyoming and Yates counties. An appeal taken from a decision of the Supreme Court, Appellate Division will be heard by the New York Court of Appeals. In general, the New York Court of Appeals only considers appeals based on questions of law, not appeals based on questions of fact, whereas the Appellate Division Judicial Departments consider appeals based on questions of law and fact.
If you’re faced with a decision, order, or judgment that adversely affects your rights we’d be happy to discuss it and help you determine whether you might obtain a more favorable outcome in an appellate court. If on the other hand, you’ve received a favorable decision, order, or judgment that is now being appealed by the other side, we urge you to contact us or another attorney urgently. The time to respond to an appeal is far shorter than the time to perfect an appeal.