Unhappy with the Terms of Your Divorce Decree? You Have Options
Q: The court has issued a “decree of
divorce” (a decision to terminate my marriage), and I am unhappy with
the terms of the decree. Is there anything I can do?
A: Yes. If
a judge (as opposed to a magistrate) issued the decree, you have the
right to file an appeal and/or a motion for relief from judgment. If a
magistrate issued the decree, you must first file objections to the
magistrate’s decision. You cannot appeal a magistrate’s decision without
first filing objections.
Q: A magistrate issued the decree. When must I file objections to the magistrate’s decision?
A: You must file written objections to a magistrate’s decision within 14 days of the file date of the magistrate’s decision. If you file objections, your former spouse may also file objections within 10 days after you file your objections.
Q: How do I file my objections?
objections must be in writing and specific, and you must provide a
detailed account of the errors you believe exist in the magistrate’s
decision. You must submit your objections to the court along with a
Q: What happens after I file written objections to the magistrate’s decision?
A: The court has the option to adopt, reject, or modify the magistrate’s decision with or without an evidentiary hearing.
Q: What happens if I want to appeal a divorce decree that a judge has issued?
must file your appeal within 30 days of the file date of the
decree. Also, you must follow the particular appellate court’s rules for
“perfecting” your appeal. Each appellate court has its own rules for
“perfecting” an appeal, and they must be strictly followed or you run
the risk of having your appeal dismissed. Typically, you must file a
notice of appeal with the decree attached, along with a docketing
statement, a “praecipe” (a written order asking the clerk to transmit
the trial record), and a notice that the trial transcript has been
ordered. Also, you must order the trial transcript. At the time you file
these documents, you must pay a filing fee.
Q: What happens after I file the notice of appeal,
the docketing statement, a praecipe, and notice that the trial
transcript has been ordered, and I have ordered the transcript?
court will issue a notice to the parties that the record of appeal has
been filed. The notice should contain deadlines for the parties to
submit their appellate briefs, but the briefs are otherwise due 20 days
after the notice is mailed. In the brief, you will give a short
rendition of the facts, and your arguments about why the trial court’s
decision should be reversed. Your former spouse also will have an
opportunity to submit a rendition of the facts and arguments as to why
the trial court’s decision should be affirmed. After you and your spouse
have submitted your briefs, you may have an opportunity to present your
arguments orally to a panel of three appellate judges.
Q: Aside from an appeal, are there any circumstances under which a court’s decision may be changed?
A: Yes. The
court’s decision may be changed in response to your “motion for relief
from judgment” even after the appeals process. You may file a motion for
relief from judgment if there has been: 1) a mutual mistake shared by
both parties about a relevant fact in the case, an inadvertent failure
to pay careful attention to the divorce proceeding where your rights
were affected, a surprise that you could not have protected yourself
against with ordinary care, or neglect that is excusable under the
circumstances; 2) newly discovered evidence that could not have been
discovered in time to move for a new trial; 3) fraud,
misrepresentation, or other misconduct by the other party; 4) another
reason that justifies a change in the decision; or 5) another reason
that justifies a change in the decision.
Q: When must I file a motion for relief from judgment?
motion must be filed within a reasonable time, and for reasons 1), 2), and 3) above, not more than one year after the filing date of the
decision. For the fourth and fifth reasons, there is no pre-determined
amount of time.
This “Law You Can Use” column was provided by the Ohio State Bar
Association (OSBA). It was prepared by Allison K. Tracey, Esq., who is
with the Columbus law firm of Collins & Slagle Co., LPA.