Albuquerque Family Law Appeals
Family disputes can have a lasting effect on your relationships with those closest to you. For that reason, they must be handled with sensitivity and professionalism by those tasked with assisting in finding resolutions.
We take that responsibility very seriously at Legal Solutions of New Mexico.
We aim for the desired legal outcomes for clients but always keep in mind that the “bigger picture” of family unity is of paramount importance.
Sometimes, the outcomes are not what you desired and then the decision may be made to file an appeal. This requires specialist legal skills and in-depth knowledge and experience of the New Mexico appeal system.
We will support you and defend your rights and interests if you are considering a family law appeal in the Albuquerque area.
Family law appeals in New Mexico
At Court of Appeal hearings in New Mexico, a higher court reviews the decision of the lower court.
The most common example is a spouse appealing certain aspects of divorce decree judgement, such as child custody and visitation, child support, spousal support or division of property.
However other family law appeals may concern the following:
- Domestic violence
- Kinship guardianship, etc.
If the court rules on these matters and you have a substantiated cause to challenge the decision, you may be able to file an appeal or motion to change the judgement.
Either party has the right to lodge an appeal and challenge decisions made by the court or to change certain rights and obligations even after a decision becomes “final”.
Generally speaking, however, appeals are permitted only in specific circumstances. Some examples include:
- A legal error was made by the judge in the lower court when determining the facts or interpreting the law in your case
- New information comes to light that may have affected the original judgement
- An instance of fraud by the opposing party has been uncovered (such as concealment of assets in a divorce case)
Bear in mind that if you and your spouse agree on a divorce settlement where the main issues such as property division, child support payments, etc. are all settled, it is very difficult to later appeal the settlement once it is finalized by the judge.
The most that you could hope to achieve is to ask the judge to modify the judgement.
With appeals, it is not enough to disagree with the original ruling. You need a substantive cause to successfully file for an appeal.
Appeals are heard at a higher court than the original case. They can be expensive due to the amount of time involved in preparing cases.
Before deciding to appeal, you should discuss your chances of a positive outcome with one of the family lawyers at Legal Solutions of New Mexico.
Many decisions made by the court in family law cases rely on a judge’s discretion. This can make it very difficult to overturn decisions on appeal and, in reality, few divorce case decisions are successfully appealed.
If, however, you wish to proceed, an appellate attorney will start working on your case and be ready to present a compelling argument at a new hearing.
How do you file for a divorce appeal?
To file for a divorce appeal in New Mexico, the matter must be fully decided and a final written order issued by the judge.
If, after discussion with your family lawyer, you decide that there are substantive grounds for appeal, a notice of appeal must be filed within 30 days of the written order.
If you miss this 30-day deadline, you will be bound by the original decision of the court.
It’s important to understand that filing a motion for appeal does not put a hold on a family court order. It will still be in place until you successfully appeal the decision.
However, you may be able to put an order on hold if an appellate attorney successfully requests a “stay” with the court. This is a temporary measure that delays the order from taking effect for a short period.
For the actual appeal, your appeals lawyer will file a written appellate “brief”, which is a document containing the main arguments you want to put forward. This will need to be supported by references to the appropriate New Mexico case law and statutes.
You may claim that you did not have a fair hearing because the judge incorrectly applied the law when reaching a decision, for instance.
The opposing party will also be notified of the appeal and may prepare a brief outlining their arguments why the original decision from the court was correct.
Unlike with the lower court, the arguments put forward in appeals are usually in writing rather than in person.
You will not need to attend the hearing though your lawyer may be asked to appear to submit arguments in person.
Can my divorce judgement be modified or reversed?
There is no guarantee that because your appeal is heard, you will get the outcome that you hope for.
Appeals court decisions often hinge on the “record” of the original trial rather than any new evidence being presented.
The record is a written transcript of the trial court proceedings. If there are clear errors or inconsistencies identified in the legal processes, you will have a stronger case than if you appeal the judge’s application of discretion.
There are four possible outcomes if you appeal a divorce decree judgement in New Mexico:
- Reversal– the court decides that the initial decision was incorrect
- Remand - your case is sent back to the family court for a new hearing
- Affirm - the original family court decision is upheld and remains in place
- Modification - part of the initial decision is amended by the higher court
Once the appellate court makes its decision, it is considered final and there are very limited opportunities to make a further appeal.
If an appeal is not possible, you may be able to ask the trial court to modify aspects of the divorce judgment. This must usually be justified by a substantial change of circumstances.
For instance, with a child support order, a temporary modification may be justified if the paying spouse loses his or her job and cannot find alternative employment. Another example would be a child custody order that was impacted by drug abuse by one of the parents.
For a modification to be made, your lawyer will need to file a “motion to modify” the divorce decree or judgment with the same court that heard your initial case and issued the judgement.
Are you looking for an experienced appeals lawyer?
It is extremely challenging to successfully appeal a family law court decision. Attempting that without the skills and guidance of an experienced family lawyer is almost impossible.
Because of the strict requirements for hearing appeals, you must be sure that you have good grounds for appeal even for your case to be reviewed.
You will also need to decide quickly because of the short deadline for appeals after a court order has been issued.
If your case is approved for appeal, successfully overturning lower court decisions is especially challenging because of the importance placed on a judge’s discretion in family law matters.
If you feel that you may have a strong case for appeal, speak to one of the appellate lawyers at Legal Solutions of New Mexico, who will help you decide whether to proceed.