Divorce Appeals

At Fahnert LLC we have experience appealing (and winning) appellate and Illinois Supreme Court cases.

There are two kinds of appeals, regular appeals and interlocutory appeals.

Appeals are a request to a higher court to reverse or overturn a lower court’s decision. Generally speaking, you may only appeal a final judgment. Commonly appealed issues in domestic relations are child-custody, maintenance and child-support, and the division of property.

Interlocutory appeals are appeals taken before the final judgment. Common interlocutory family law appeals are appeals from “interlocutory orders affecting the care and custody of or the allocation of parental responsibilities for unemancipated minors…” Illinois Supreme Court Rule 306 

There are two types of interlocutory appeals:

  1. Interlocutory appeals as of right. You do not need to get permission from the trial court to appeal an interlocutory appeal as of right. Interlocutory appeals as of right are often used for Temporary Restraining Orders, and
  2. Interlocutory appeals by permission. You need to get leave from the trial court to appeal that court’s ruling. Interlocutory appeals by permission are used for interlocutory orders affecting the care and custody of or the allocation of parental responsibilities for unemancipated minors.

What type of interlocutory appeal you use depends on the issue that you’re appealing. For example, if you are appealing a temporary restraining order then you can do an interlocutory appeal as of right. If you are appealing an interlocutory child custody order, then you can only appeal by permission.

Appeals that deal with child-custody or allocation of parental responsibilities are heard by the appellate court on an expedited basis. This means that, except for good cause show, the appellate court shall issue its decision within 150 days after the filing of the notice of appeal or granting of leave to appeal pursuant to Rule 306(a)(5). Supreme Court Rule 311

Domestic relations appeals require an unusual amount of skill because the statute awards domestic relations judges a lot of discretion in their rulings and, thus, proving that the judge made an error is very difficult. For example, in determining whether to award maintenance,  a judge may consider is “any … factor that the court expressly finds to be just and equitable.” Thus, if a judge makes a maintenance decision based on an irrelevant issue you cannot make the argument on appeal that the judge’s ruling did not comply with the statute. Instead you need to argue that the judge make a clearly erroneous decision in taking into consideration the irrelevant issue. The standard of proof needed to show a ruling was “clearly erroneous” is very high.

Marie developed her passion for appeals in law schools where she worked appealing wrongful conviction and death penalty cases including Sanchez-Llamas v. Oregon, a US Supreme Court case. In 2009, Marie won a rarely granted Supervisory Order from the Illinois Supreme Court that vacated four months of the trial court’s ruling.

 

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