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Matrimonial Appeals

Matrimonial Appeals

Matrimonial appeals involves any appeal from a matrimonial action and these bring their own special challenges due to the ancillary nature of most matrimonial relief.

In simple terms, because most matrimonial relief does not exist as a separate cause of action, any appeal from a final order must wait until there is a judgment.

However, sometimes pre judgment decisions dispose of the case prior to judgment, meaning there is a court mandate without direct appellate relief being available. For example if a trial decision directs equitable distribution prior to judgment, no appeal can be taken from a decision, the court lacks authority to direct equitable distribution in a decision, yet there is a disposition of a case that orders a party to do something prior to the court having the authority to do so.

There are workarounds when courts make these kind of errors but a procedural road map is critical to solving these issues.

Appellate work involving equitable distribution often involves a lot of number crunching and being able to summarize involved calculations in a way that a judge who may not have a natural affinity to math can understand.

While it is always preferable to frame an appeal around questions of law, sometimes the matter being appealed does center around the court's discretion. Here, the object is to review similar cases to provide a range of dispositions that can be used to show what outcome is within the "sound discretion" and to argue that an outcome outside this range is an "abuse of discretion."  Having hard numbers is a far more effective approach in these instances.

When custody is involved, consideration of the use of a motion to stay the enforcement of the custody order pending the appeal should always be explored. Here, the key is the side seeking to maintain the status quo has an innate advantage in these kind of motions. But when making a motion for a discretionary stay, very often the court will grant it only on the condition that the appeal is perfected in an expedited fashion.

Finally, there are matrimonial appeals that result in the Appellate Division sending some aspect or even the entire case back to the Supreme Court for further proceedings. Having an in depth knowledge of how matrimonial actions proceed in Supreme Court can be invaluable in how the relief requested in an appeal is framed.

Reach out if you have any questions

J. Douglas Barics
Attorney at Law

356 Veterans Memorial Highway
Suite 3
Commack, NY 11725


Phone: (631) 864-2600

Fax (631) 543-2888

Email: lawyer@jdbar.com

 

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