A litigant’s right to appeal a questionable judgment is well-ingrained in Anglo-American jurisprudence. In fact, appellate opinions, (not trial court’s rulings or even the statutes) constitute the bulk of family law. These opinions offer precise interpretations vaguely-worded laws, and govern how trial courts must rule. Yet, only a tiny percentage of all family law cases ever reach even the first level of appellate review. Why is that? For starters, many family law clients simply can’t afford the appellate process. More fundamentally, overturning an unfavorable final judgment requires many conditions to be “just right.” As a result, while the right to appeal is available to all litigants, most family law attorneys will only handle a small number of appeals during their careers, if any.

First, let’s examine the basic procedure for an appeal. A family law litigant has 30 days from the final judgment to file a notice of appeal (A few non-final orders can also be appealed, but for the sake of brevity, we will only consider final judgments). For example, if you are not happy about how the trial judge ruled in your divorce trial, you must file the aforementioned notice no later than 30 days after the signed final judgment is issued. If you fail to timely file this notice, you waive the right to appeal forever. Needless to say, a competent family law lawyer will advise his/her client of this deadline either right before or immediately after the trial. Furthermore, the appealing party must pay the initial filing fee along with the notice of appeal. The clerk of court will not accept the notice of appeal without an accompanying payment of this fee, which ranges between $250 and $300.

Keep in mind that the notice of appeal merely announces to the court and to the opposing party/attorney that an appeal is being sought. Within 70 days after filing the NOA, the appellant must submit an initial brief. This brief is the “meat” of the appeal, and contains all of the legal arguments for overturning the trial court’s final judgment. The Florida Rules of Appellate Procedure contain dozens of detailed format requirements that the brief must adhere to (e.g. length, font, and margins). In short, drafting the initial brief requires a minimum of 4 to 6 hours of work for a family law attorney. This is why the appellant is given 70 days to complete this brief.

Within 20 days of being served the initial brief, the appellee (the party seeking to uphold the final judgment) must file the answer brief, briefs is typically shorter. Also, the appellee possesses the right to file a cross-appeal of the final judgment. However, these are rare.

Finally, the appellant may chose to file a reply brief within 20 days of receiving the answer brief. It simply responds to the arguments made in the answer brief. Thus, it is usually the shortest of the three. Overall, an appeal presents a lot of expense and risk.

The five District Courts of Appeals in Florida hear almost all appeals from trial court judgments. The DCA panel of judges will only overturn factual conclusions if the trial judge committed what is referred to as “an abuse of discretion.” Essentially, a trial judge’s factual finding must be devoid of any supporting basis for it to be overturned. A close decision on the facts will be upheld, even if the DCA would have reached a different conclusion.

On the other hand, when a trial court applies the wrong legal standard to a set of facts, the appellate court will almost certainly overturn that part of the decision. This factual/legal distinction is often quite subtle, and is not always immediately apparent. However, when deciding whether to appeal, a family law attorney should discuss with the client how many of the judge’s errors were legal, as opposed to factual.

Despite these challenges, I have represented five clients in appeals. Four of these clients obtained favorable rulings from the DCA. If you are considering filing an appeal of your final judgment, please call me, Eduardo J. Mejias, of AAA Family Law at 407-260-6001 before the 30-day deadline and schedule a free consultation with me.

Despite the best efforts of mediators and attorneys to settle their divorce cases, trials are sometimes necessary. Whether the differences are a result of stubbornness, or the disputes are by nature, intractable, every litigant has the right to proceed to a trial. This is not a comprehensive review of the trial process, but her are some helpful insights for the family law client who is facing a trial:

The Unmatched Importance of the Judge

Unlike other civil and criminal trials, which mostly feature juries, family law trials exclusively rely on judges to make the final rulings. When you are preparing for trial with your family law attorney, you should ask him or her about your judge’s tendencies and inclinations. Of course, having an experienced family law attorney helps in this matter. Continue Reading

For family law attorneys, mediations represent the “bread and butter” of their divorce practice. While I have participated in over fifty divorce trials, the number of mediations I’ve been involved in is well into the hundreds. These numbers result from these two facts: (a) almost all family law cases entail at least one mediation because they are required by law before going to trial, and (b) the majority of family law disputes do not result in a trial because of the considerable advantages of settling the issues in the divorce at the mediation.

The venue and settings of a mediation explains why they’re generally effective.

First, the divorcing couple and their family law attorneys are finally present in one room with no distractions. The mediation forum presents the first opportunity for all of the players in the case to discuss openly the prospect of settling their disputes. In comparison, negotiations through e-mails and phone calls are inefficient and unreliable. Continue Reading

Family law attorneys face many unique challenges, some of which I have mentioned in past articles. But the “elephant in the room” that still needs to be addressed are attorney’s fees. In particular, I want to discuss why the fees charged by Florida family law attorneys are different from those of other attorneys. These are the three main forces that drive the way that family lawyers charge their fees and how AAA Family Law deals with them:

Family lawyers do not have a simple measure of the value of their service or standard service categories. This principle underlies all of all of the other factors. Family lawyers do not provide quantifiable services. We also do not have a menu of routine standard services to offer the way a typical automotive repair shop charges $19.99 for an oil change. No two divorces, paternity actions, relocations, etc., are the same. Some are much more complex than other and therefore, take more time. That is why the only measure we have left use for setting prices is how much time we spend on your case. Continue Reading

Within Florida family law, relocation cases present the biggest gap between public perception and the controlling statute. This lack of knowledge stems from the recency of new statutory enactments dealing with the relocation of the parent with the children to a new town, state or country. Many of my divorced clients know some of the fundamental concepts of divorce, alimony, and child support. But they admit ignorance when they ask me about the possibility of relocating with their children. I then give them my divorce attorney “lecture” about Section 61.13001, Florida Statutes, which governs relocations of divorced parents. To the readers of this blog I offer this list relocation “Do’s and Don’ts”.

Do Prepare This For the Court

Benefits of a New Job

Perform a cost-benefit analysis of your proposed relocation. If a new job awaits you at your desired destination, obtain a precise income figure. Section 61.13001(7)(e) and (g) list the economic and employment benefits of the proposed move as factors that the trial court must consider. Furthermore, if you or your current spouse are starting a job in the new town, a job offer must be reduced to writing, and included in the petition for relocation. Section 61.13001, Florida Statutes.

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How to Work with Your Family Law Attorney

Family law, more so than other areas of law, requires communication and cooperation between the attorney and the client. Unlike other types of lawyers, family law attorneys must react to ongoing events and fluid situations. A client facing a DUI charge repeatedly discusses the same event to his attorney: the night he enjoyed a couple of drinks at the local watering hole and was pulled over while driving home.

Conversely, a divorce attorney deals with events during the course of the marriage, during the divorce proceedings, as well as future situations that may arise well after the divorce (e.g., the sale of the marital home or the date that child support obligation terminates for one of the parents). The breadth of facts that a family law attorney must be familiar with demands an open, honest, and harmonious attorney-client relationship. The family law client can take the following three steps to be sure of being on the “on the same page” with the attorney:

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Family lawyers (or divorce attorneys) in Orlando and everywhere else in Florida undoubtedly face unique challenges. In addition to providing legal advice, we are often called upon to act as therapists, sounding boards, and financial advisers. Because we wear so many hats, our advice to clients varies greatly. However, regardless of what you hire your family law attorney for, you should ask the following questions:

What is your level of specialized experience?

Family law has both breadth and depth. For example, a divorce may require a lawyer to analyze recent case law about time-sharing (child custody), draft a memorandum of law about the proper date of the valuation of a marital asset, and make compelling arguments about how much income a college graduate with a particular degree can earn. Each of these issues, by themselves, have generated dozens, if not hundreds, of appellate opinions that delineate the applicable rule of law.

Would you trust a “jack of all trades” lawyer (e.g., “your lawyer for life”) to appreciate all of the nuances and complexity of family law? Would you rely on your family doctor to guide you through a double-bypass heart surgery? Of course not.

For these reasons, if you have a family law issue, you should ask these questions of the lawyers you are considering:

(a) How much of their practice is devoted to family law?

(b) How many family law trials have they litigated?

(c) How often do they settle divorces at the mediation stage?

(d) How many of the local family law judges have they appeared in front of?

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