Should You Appeal Your Divorce?

Can someone appeal a divorce in Colorado? The short answer is yes. You can certainly appeal your case. You have a certain time limit to do that and your attorney should work with you specifically on that. I think at the end of the case, if there’s something that needs to be appealed or a thought maybe we should appeal this case, we need to have that full conversation. What’s our time frame and what would that appeal look like?

husband and wife arguing and pointing at each other

However, I want to be very clear about the return on investment for appeals here in Colorado on a family law matter. A lot of what is determined in a family law matter is based on the finder of fact. In family law, the judge is the finder of fact, as opposed to personal injury cases where you have a jury. Or a criminal case where you’d have a jury that would find the matters of fact in a case. Who to believe, what really happened, that kind of thing. In family law, there is no jury system, there’s only the judge. The judge determines fact.

Let’s just say that you have a custody case and the judge determines that it’s best for one of the parents to have full custody, and the other parent has very little visitation. You’re the parent that got the very little visitation. You’re really angry about that and you really want to appeal that matter. Decisions about custody in terms of what is in the best interest of the child, mostly are fact-based decisions. Fact, not law, fact. You will not be able to appeal a fact-based decision unless there is clear negligence in that fact-based decision.

It’s difficult to win on an appeal to say that it was truly a negligent decision on the part of the judge. It is very hard to overturn a fact-based decision. I’m not saying it’s never been overturned, I’m saying it’s unusual to have that type of fact-based determination overturned. Typically, an appeal is on a legal question, evidence that came in that shouldn’t have come in legally, an objection that the court ruled in an incorrect way on an objection to evidence coming in. Standard used, like for instance, the judge used an endangerment standard in making their decision when, in fact, you could argue that they should have used a best interest of the child standard, which is a lower standard.

Those are legal questions and legal questions are appeal-able and they are much more likely to be dealt with at the appellate level more directly. On fact-based issues, the appellate court can often just say it was a fact-based issue, we’re not going to deal with that. Question number one, do you have a legal issue to appeal or is it only fact-based issues that have to appeal and is it worth it to go through the appellate system? It usually takes up to a year to deal with an appeal. That’s a long time. It’s expensive to appeal a case.

Oftentimes it’s better to wait a while and then try to modify the decision of the court. It might be quicker to modify a decision of the court than it is to appeal it. The decision on appeal is really, really one that you want to take a while to think about, to really evaluate the chances of success, and look at the alternatives to the appellate system to decide whether it makes sense to appeal a case or not in family law.  For more information about filing for divorce, how divorce works, or any other family law matters in Colorado, call us at 303-329-3802.