Appeals of Illinois Divorce and Paternity Cases
(By Paulette M. Gray)
The Gitlin
Law Firm, P.C., Woodstock, Illinois © 2009
www.gitlinlawfirm.com
Q:What is an appeal?
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.
Q:Can I present new evidence on appeal?
A:No. The appellate court can only consider what happened in the trial court (examine
pleadings and orders, review trial transcripts, etc.).
Q:When can an appeal be filed?
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.
http://www.isba.org/IBJ/aug00lj/p444.htm. To
see an updated version of this article, click here.
Q:In a divorce or paternity case, can you appeal a temporary order?
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.] *
Q:How many issues can I appeal?
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.
Q:How much does an appeal cost?
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.
Q:What about obtaining fees for an appeal against my spouse?
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.
Q:Do I have to use the same lawyer?
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.
Q:What are the significant first steps in 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.
Q:How long does an appeal take?
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.
There
are recent Supreme Court Rules relating to appeals of custody cases--
including Supreme Court Rule 306(A). A good discussion of this
Rule is in the Illinois
Bar Journal, May 2004 .
Q:What if I win the appeal?
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).
Q:Are there any organizations of appellate lawyers in Illinois?
A:Yes.
Both Attorney Paulette Gray and Attorney Gunnar J. Gitlin are members
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.
The Gitlin Law
Firm, P.C.
Practice Limited to Family Law
663 East Calhoun Street
Woodstock, IL 60098
815/338-9401
www.gitlinlawfirm.com
Gitlin Law Firm, P.C.
Updated:
July 1, 2009
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