Legal representation can play a valuable role in almost any type of case. However, securing professional counsel can be especially important in cases of high personal significance that also involve complex procedural requirements. A divorce appeal is one of the most common examples of this combination of high stakes and complicated legal considerations, so individuals considering a divorce appeal will often seek the advice of an attorney with experience in appellate law who may also be prepared to represent the client throughout the appeals process. We proudly Forsyth County, York County, Mecklenburg County, Haywood County, and Watauga County. Schedule a conversation with a divorce appeals attorney at King Law Offices by calling 888-748-KING to connect with a member of our team near you.
What Is the Meaning of Legal Representation?
Many individuals may be familiar with the concept of legal representation, even if they are not used to the term. Any time an attorney-at-law makes a filing, submits a response, or appears in court on behalf of a client, the attorney is taking on the work of legal representation.
Legal Representation in American Courts
The role of legal representation is considered so vital in American jurisprudence that criminal defendants’ right to be represented by a trained attorney in matters related to their arrest and trial is enshrined in the United States Constitution as part of the Bill of Rights. Individuals seeking relief or responding to suits in the civil courts do not enjoy the same guarantee of legal representation as a matter of Constitutional right, but many people navigating the legal processes associated with a civil case nonetheless choose to retain the services of a lawyer who can evaluate the available options, identify applicable case law, and draft and submit key filings on their client’s behalf – in addition to making arguments before the court during litigation.
Family Law and Civil Courts
All states treat family matters as belonging to the realm of “civil,” in the sense of non-criminal, law; criminal cases are tried by prosecutors, who bring charges against the defendant for an alleged violation of law in the relevant jurisdiction. This jurisdiction may be state or federal, depending on the circumstances, and the state or federal prosecutor trying the case will be a lawyer employed by the government (state or federal) that holds that jurisdiction.
Civil cases such as personal injury suits (especially “class-action” lawsuits involving multiple plaintiffs) may also be state or federal; a few types of civil cases, such as actions over alleged intellectual property infringement, are virtually always tried in federal courts. Family cases, on the other hand – and a few types of civil cases, such as probate challenges – are practically always filed and pursued in state courts, as laws relating to domestic relations are overwhelmingly under the jurisdiction of the filing party’s state of residence. However, states vary considerably in the degree to which they separate distinct types of non-criminal cases, and develop specific “rules of procedure” to be followed in each case type.
Family Cases and Court Rules
Family disputes, like civil torts, contract litigation, and probate matters, are tried between the litigants (or their legal representatives), usually because one side of the dispute has sought some form of “relief” from the court. Given this close similarity, some states apply the Rules of Civil Procedure to family cases directly; others maintain separate Rules of Family Procedure.
Court Rules and Case Types in South Carolina
South Carolina’s Judicial Branch, for example, sets out distinct Court Rules for the following case types:
- Appellate
- Civil
- Criminal
- Family
- Probate
South Carolina even provides discrete guidance for the state’s magistrate courts.
Organization of Court Rules in North Carolina
Across the state line, North Carolina courts apply a very different structure to the organization of their rules of practice and procedure. The North Carolina Judicial Branch groups set of rules under a series of broader headings, with anywhere from one to seven sets under each heading:
- Appellate: Only one set of rules, but this heading contains an additional entry for forms related to North Carolina appellate practice
- Trial procedure: Three sets of court rules, including a distinct set of rules for the state’s Business Courts, a broader set of “General Rules of Practice and Procedure” covering the handling of cases in both District and Superior Courts, and “Supplemental Rules of Practice and Procedure” for cases to which North Carolina’s e-filing pilot program applies
- Mediation: Seven sets of rules, differentiated according to the court with jurisdiction over the type of matter being mediated and in some instances according to the type of matter concerned as well (mediations of family financial disputes and farm nuisance complaints each get their own rules for mediation)
- Arbitration: One set of rules, supplemented by North Carolina’s “Canons of Ethics” for arbitrators
- Judicial conduct: Four sets of rules outlining the obligations of members of the state’s judiciary
Most family matters at the trial level are heard in District Courts in North Carolina and are managed according to the General Rules of Practice and Procedure. Divorce appeals will instead be subject to the Rules of Appellate Practice (N.C.R. App. P.). A family law attorney with King Law Offices may be able to review your case for a divorce appeal, even if you did not work with a member of our team on your initial divorce case.
Pro Se vs. Professional Representation in Family Cases
As far back as 2006, the National Center for State Courts (NCSC) noted a trend toward “increasing” percentages of pro se litigants (parties who represent themselves in court), with by far the highest concentration of what the American Bar Association (ABA) calls “self-represented litigants” (SRLs) in family law cases. Pro se representation continues to be a particularly frequent choice in uncontested divorces and in child custody modifications based on a change in circumstances for which both of the co-parents agree on a practical solution. For more complex case types, such as contested divorces and especially any proceedings related to a divorce appeal scenario, securing professional legal representation through a licensed attorney becomes much more common.
Differences Between Divorce Trials vs. Divorce Appeals
One of the most significant differences between divorce litigation and a divorce appeal lies in the scope and nature of evidence presented. While the exact court rules governing what may be presented in a divorce appeal, and how, will depend on the state, in neither North Carolina nor South Carolina will an appeals court hear new evidence about the case. Moreover, a divorce appeal typically deals only with a limited portion of the decision issued by the judge in the District Court (North Carolina) or Family Court (South Carolina): For instance, a former spouse might challenge the amount or duration of court-ordered alimony, or the equity of the division of marital property as directed in the final decree.
Legal Grounds for a Divorce Appeal
No matter what aspect of the divorce order a former spouse asks the appeals tribunal to review, the appellant (the party filing the appeal) will have to cite the legal error they believe the judge made in issuing the original decision. Although appeals cases do occasionally argue that a trial court has abused its judicial discretion, this tends to be a particularly difficult claim to substantiate. A much more common ground cited for a divorce appeal would be that the judge granting the divorce made an error in their application of state law pertinent to the contested point. Generally, the appellant will argue that this error harms them in some way that cannot effectively be remedied by other means (such as a modification of the court’s order).
A family law attorney with substantial experience in appellate practice will often be in a position to evaluate the final decision in a divorce case and identify possible grounds for an appeal based on how state laws have typically been applied in similar cases. Case law can frequently be more challenging to access and search efficiently than a state’s statutes, and so legal representation by an experienced attorney can in many cases be an asset in developing a clear and compelling argument for why the appellate court should overturn the judgment reached by the judge in the lower court.
Judicial Deference
In addition to the potential challenges posed by unfamiliar court rules and the inadmissibility of new evidence, succeeding in a divorce appeal can often prove difficult due to what is known as judicial deference. Essentially, “judicial deference” refers to the appellate court’s presumption that the lower court’s judgment is correct: The burden of proof in any divorce appeal is on the party requesting a review of the original decision in the case. This presumption can prove difficult to overcome, and so it is not surprising that individuals without a legal background of their own often prefer to approach the challenge with the benefit of professional counsel.
Consider Consulting With an Appellate Lawyer
If you are considering a divorce appeal, you have limited time in which to file your Notice of Appeal and collect the necessary supporting documents. Timelines vary by state, but in most instances both North Carolina and South Carolina will expect no more than thirty days from the date you were served with the original divorce order. If you are located in Winston-Salem, Rock Hill, Mecklenburg County, Haywood County, or Watauga County, time is of the essence, so you may wish to speak with a divorce lawyer in your area who has experience in providing legal representation to clients pursuing divorce appeals. A member of the King Law Offices team may be able to help you evaluate your options. Call 888-748-KING to set up a private consultation.