How a matrimonial appeal works
A matrimonial appeal is a review of the trial court’s decision by the Appellate Division. The appellate court does not retry the case. It reviews the record for legal error and, for some issues, for whether the trial court’s discretion was exercised within proper limits.
Appeals are won and lost on the record and the briefs. The strongest appellate cases are built before the trial is over: we preserve issues, make the right objections, and develop the record so the appeal has something to work with.
The four Appellate Divisions
New York’s Appellate Division is split into four geographic Departments. Where the trial court sits determines which Department hears the appeal.
- First Department — Manhattan, Bronx
- Second Department — Brooklyn, Queens, Staten Island, Nassau, Suffolk, Westchester, Rockland, Putnam, Dutchess, Orange
- Third Department — Albany and the surrounding upstate counties
- Fourth Department — Rochester, Buffalo, and Western New York
Should you appeal?
Most trial decisions, even decisions a client believes are wrong, are not winnable on appeal. Appellate courts give significant deference to trial-level findings of fact, credibility, and discretion-based rulings.
A strong appeal usually involves one or more of: a clear legal error in interpreting a statute, an evidentiary ruling that excluded material proof, an award that is outside the range supported by the record, or a procedural defect that affected the outcome.
We screen prospective appeals candidly. If the appeal will not succeed, we say so.
Beyond the Appellate Division
A loss in the Appellate Division can sometimes be reviewed by the New York Court of Appeals, the state’s highest court. Most Court of Appeals review is by permission. The Court takes cases that present significant statewide questions, conflicts among the Departments, or issues of first impression.
Federal review (in the U.S. Supreme Court) is available only on narrow federal constitutional grounds and is very rarely granted in matrimonial cases.
Timeline and deadlines
A notice of appeal generally has to be filed within 30 days of service of the order or judgment with notice of entry. Miss this deadline and the right to appeal is lost. Once the notice is filed, the rest of the appeal (perfecting, briefing, oral argument) typically runs over the following six to twelve months.
If you are weighing an appeal, the call you need to make first is whether to preserve the right by filing the notice. That decision should be made within the first two weeks of receiving the order.
Questions clients ask first
- How long do I have to file an appeal?
- Generally 30 days from service of the order or judgment with notice of entry. The notice of appeal preserves the right to appeal; the actual briefing comes later. Missing the 30-day deadline forfeits the right to appeal.
- Can I appeal an interim order during the case?
- Sometimes. Some interlocutory orders are immediately appealable; others have to wait for final judgment. Temporary support, temporary custody, and certain interim equitable distribution rulings can be appealed during the case. We screen on a case-by-case basis.
- What are the chances of winning a matrimonial appeal?
- Statistically, low. The Appellate Division reverses or modifies a meaningful percentage of matrimonial cases but the absolute numbers are not high. Strong appeals on legal-error grounds have a better chance than appeals attacking discretion-based findings.
- Can the same lawyer who lost the trial handle the appeal?
- They can, and sometimes that is the right choice because of familiarity with the record. Other times a fresh appellate perspective is valuable because the trial lawyer is too close to the case to see the strongest appellate arguments. We do both.
- How much does an appeal cost?
- Less than a trial, but not cheap. The main cost is brief preparation, which is time-intensive. Record assembly and oral argument preparation add to it. We give a budget at the consultation based on the issues and the record size.
- Can my ex-spouse appeal if I win at trial?
- Yes. Either party can appeal. We prepare clients for the possibility that a favorable trial outcome will be challenged on appeal, and we represent prevailing parties on the respondent’s side as well.