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Appeals of Illinois Divorce and Paternity Cases
Law Firm, P.C., Woodstock, Illinois © 2013
A:An appeal is not a new trial. An appeal is a request by a party (the “appellant”) asking the appellate court to review the decision of the trial court because he or she believes the trial court entered an erroneous decision.
A:No. The appellate court can only consider what happened in the trial court (examine pleadings and orders, review trial transcripts, etc.).
A:An appeal cannot be filed until a final order is entered in the trial court. For example, if you are divorced, but your divorce decree reserves a substantive issue such as child support, your divorce judgment cannot be appealed. Determining when an order is final is one of the most difficult issues in divorce and paternity cases that go to trial. To see an article about final and appealable orders that appeared in the Illinois Bar Journal, co-authored by Gunnar J. Gitlin, click here. To see an updated version of this article, click here.
A:Usually not. In limited circumstances, the trial court will label an order entered during the pendency of the case an “appealable” order, but this is not common. Even if the court labels an order as a final and appealable order, this may not control. On the other hand, there are certain issues which may be subject to an immediate appeal in divorce cases, such as certain orders finding a person in contempt and imposing sanctions as a result of the contempt finding. Other orders which may be subject to immediate appeal are temporary restraining orders (injunctive orders). [See Glossary for discussion of injunctive orders.] *
A:You are not limited in how many issues can be raised on appeal. However, you should limit your appeal to issues which are of great importance to you. You want your attorney to be able to focus the appellate court’s attention on 1-3 major issues instead of 10 issues. There are also page limitations for your appellate brief and your attorney must be able to effectively argue your position within these page limits. In short, use a rifle rather than a shotgun approach.
A:This depends on how many issues are being appealed, whether you are the appellant (the person appealing) or the appellate (the person answering the appeal), the length of trial, and legal complexity of the issues being appealed. Some lawyers charge by the hour and some lawyers charge a set fee. The Gitlin Law Firm usually bills based upon an hourly rate for work on appeals.
A:Section 508(a) of the Illinois Marriage and Dissolution of Marriage Act allows the court to order one party to pay the other party’s attorney’s fees in connection with the defense of an appeal and the prosecution of any claim on appeal (if the prosecuting party has substantially prevailed). Whether the court makes such an award is within the court’s discretion. The court will look at the parties’ financial resources in determining whether to award attorney’s fees in an appeal.
A:No. The advantage of having the same lawyer for the appeal is that this lawyer is familiar with the case. The advantage of hiring a new lawyer is that this brings a fresh, and sometimes more objective, approach to the case. Often, the trial lawyer will collaborate with a lawyer who has more experience with appeals -- in pursuing or defending an appeal.
A:The first critical step is determining whether the order is appealable and then filing a timely notice of appeal. Once the decision has been made to appeal, the priority step should be obtaining the transcripts of all of the testimony. Because this step often takes considerable time, it is important that it be initiated as soon as is possible.
A:Your lawyer is bound by the Rules of the Illinois Supreme Court regarding time lines. If these deadlines are not followed your appeal can be dismissed. As of February 26, 2010, there are rules incorporated into SCR 311 providing for an "accelerated docket" in custody cases. It is titled, " Mandatory Accelerated Disposition of Child Custody Appeals." It provides in part, "The expedited procedures in this subpart shall apply to appeals from final orders in child custody cases and to interlocutory appeals in child custody cases from which leave to appeal has been granted pursuant to Rule 306(a)(5). If the appeal is taken from a judgment or order affecting other matters, such as support, property issues or decisions affecting the rights of persons other than the child, the reviewing court may handle all pending issues using the expedited procedures in this rule, unless doing so will delay decision on the child custody appeal." It also provides in part, " (5) Deadline for Decision . Except for good cause shown, 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)."
A:If you succeed and the trial court’s decision is overturned, the appellate court can either rule on the issue itself or “remand” the case, that is, send it back to the trial court with specific instructions from the appellate court as to what the trial court should do.
Q:I understand that you practice primarily in McHenry County, Lake County, and Kane County. What about appeals? Will you handle appeals for areas outside of those counties?
A:Yes. Appellate work is the one area of work where it is not at all necessary that you hire a local attorney. This is because virtually all of the work is submitted to the appellate court. The Second Judicial Circuit consists of many counties including McHenry County, Lake County, Kane County, DuPage County, Kendall County, and Winnebago County, Illinois. The Gitlin Law Firm, P.C., will accept appeals in cases outside of the Second Judicial District (again, so long as there is cooperation with local trial counsel).
A:Yes. Attorney Gunnar J. Gitlin is a member of the Illinois Appellate Lawyers Association. Membership in this organization requires a lawyer to have substantial experience in handling Illinois appellate cases.
The Gitlin Law Firm, P.C., provides the above information as a service to potential and current clients. A person's accessing the information contained in this web site, is not considered as retaining The Gitlin Law Firm for any case nor is it considered as providing legal advice. The Gitlin Law Firm cannot guarantee the outcome of any case.
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Gitlin Law Firm, P.C.
Updated: April 23, 2013
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