“Justice is open to everyone in the same way as the Ritz Hotel”-Judge Sturgess
Caveat: This post is intended to empower you. It is not legal advice.
It sounds crazy but some people find themselves in the Appellate Courts for their divorce. Picture this; two people cannot agree on their divorce settlement so they proceed to trial. A judge decides for them how their assets will be divided and how much alimony if any will be awarded and where the kids will be and when. But that’s not the end…
Inevitably, someone doesn’t ‘like’ the judgment. Usually it’s the person who pays the support or deems he got less in the decision. If he or she has the resources they take the judgment to Appeals in an attempt to change the decision…. Do they need grounds for the appeal? Not really. It is a very low bar to clear. The most common grounds for appealing a divorce judgmemt is a mistake in law that was committed by the judge or the lower court. The party filing for appeal must show that the trial judge made an error in applying or interpreting the law.
But let’s face it, a lawyer can find almost any reason to be granted Leave to appeal (maybe he didn’t like the color of the judge’s shirt). Off they go to appeals courts for another $50,000. All that’s required is money to continue in what I like to refer to as a ‘revenge divorce appeal’.
It’s unfortunate fact that money buys justice. The courthouse is not unlike the Ritz hotel. If you don’t have the money sister, finding yourself at The Ritz in Paris is about as unlikely as challenging a legal decision. You’ll suck it up buttercup, at the motel 8…
However, if you have money to burn (and more often it is the man as the bread winner) you can continue in the system until you may (or may not) get that satisfactory decision i.e. less support, more child custody, _______________ (fill in the blank).
As the Respondent in an Appeal, you have no choice but to participate. You are forced to defend it and continue spending your savings on legal fees. If you have no money left or you fear you will have no money left when it’s all over, what are your options?
a. continue spending what may end up costing you another $50,000 by maintaining your legal representation
b. seek limited legal assistance at a much lower cost (if you can find a lawyer willing to be minimally involved) say around $5,000-$10,000
c. self represent at a cost of your time and around $200 for filing and copying fees.
e. You can make or accept an offer to settle out of court but you will have to be willing to accept less.
In finally deciding which option to take, deliberate carefully on how much is at risk. If you were to lose the appeal, how much would you be losing? How much will you be spending to have legal representation (always add 20% on to the lawyer’s estimate). If your risk is 3x more than your legal fees, then it makes sense to continue with legal representation. Read more about cost vs. benefit analysis here.
If you are in a certain income bracket (under $2,000 monthly salary, depending on the # of people in your household) you may be eligible for legal aid. Each Province and State vary in their application and rules for qualifying for legal aid. B.C. legal aid for example, considers all of your assets and not just your income level. If you own property besides your home, or if you own disposable assets you may not qualify. Also, divorce appeals may not be on their list of case types that qualify for coverage. Legal Aid is a red tape process and you practically have to be penniless to qualify.
That is why a legal Appeal could break you. Without a choice but to defend, you are in a precarious position both legally and financially. Self representation isn’t as outrageous as it may sound. With a solid factum in hand, a legal consultation and
a well rehearsed script for your arguments, you have a pretty good chance at maintaining the original judgment.
If you self represent, here are 5 tips to get you started;
1) Research HOW TO write a factum– the best reference I found was here –a factum is simply the written submission from both the Appellant (the party bringing the appeal)-ex husband and the Respondent(the party defending the appeal)-you.
2) Read case precedents in family law in your Country-this will help you understand typical case outcomes and how they relate to your case and you will need to cite some to back up your arguments. For Canada, check CanLII (Canadain Legal Institute) and click in to the Province then search family law case precedents. For United States, check Federal Courts
3) Have your factum reviewed at the courthouse legal assistance office or by a family advice duty counsel or if you can arrange it, with a family lawyer for an hourly rate.
4) Attend a divorce appeal hearing and observe, take notes on the judge’s questions, lawyer’s behavior and basic procedures of the hearing
5) Write your verbal presentation to the Judges word for word and practice it. Your verbal arguments should follow your arguments made in your written submission (factum) as the judges will typically follow along with your submitted document.
6) Bonus Tip; File your factum early. You will need a certain number of copies, with a particular color cover page and the court clerk can help you with this when you present her with your original document. You will also serve his lawyer with the document after filing.
Remember to always…
I self represented in Appeals court because with all things considered, it made financial sense. I wrote about my experience here. I address how the lack of limits on divorce appeals is creating poverty in families. A screening process needs to be put in place to ensure each divorce appeal is valid and not simply based on revenge.
In the meantime, if you are being dragged to appeals court without financial resources, know that it isn’t a hopeless situation. There are ways to approach it without spending the rest of your savings and jeopardizing your children’s future. Take your power back.
What are your thoughts? Leave a comment, I LOVE ’em!