When you and your former spouse decide that a divorce is the way to go, there is an expectation that you and your former spouse will be amicable towards each other. The divorcing couple may even have that intention, but unfortunately, even the best efforts can fall to the wayside once the negotiations begin. For many parents, they experience a creeping realization that the repercussions of the divorce will affect their livelihood as well as the livelihood of their children.
When negotiating a divorce settlement, there are many laws and factors that make the understanding of your rights complicated. If you want to protect yourself and your children, you must have a thorough understanding of family appeals law as well as the help of an attorney. If the initial negotiations fail and you must go to trial, being knowledgeable of the law will help you determine if the court ruled correctly.
Sometimes, the judges will misinterpret a piece of evidence or a law that will result in the court ruling against you in full or in part. If you feel that the court had ruled incorrectly, you have the right to contest the ruling at an appellate court. Or if your former spouse is contesting the decision, then you need to have the tools to protect the original ruling.
Appellate courts, as opposed to trial courts, will only consider a change in the ruling if the original ruling resulted from the trial court misinterpreting evidence or the law. Also, appellate courts will always have a bias to affirm the trial court’s ruling. Depending on if you are contesting the original ruling or not, this fact can be good or bad. Either way, it is essential to have a Portland family appeals law attorney that has the experience to present the evidence of the case to persuade the appellate court to rule in your favor.
An appeal takes place when a case is reviewed by a higher court after a decision by a lower court. The appeal starts when the loser of a trial, known as an appellant, files a notice of appeal within pre-defined time limits. ”Filing a timely notice of appeal is one of the few things for which there are no extensions and no excuses. Even if you are hit by a car on your way to file the appeal, it will not be allowed if the notice of appeal is not filed on time,” says Oregon appeals lawyer Margaret H. Leek Leiberan. After the notice of appeal is filed, the appellant and the appellee must make written and oral arguments explaining why the lower court decision should be overturned, upheld or vacated.
“Usually, a higher court must find a legal or procedural error to change a decision, although the court can take a look at the entire case from scratch if the situation warrants,” says Portland appeals lawyer Deanna Jensen. “When this happens, it is called a de novo appeal.”
In general, there are three types of appeals an appeals lawyer can initiate:
An undeniable right to appeal – this is one of the basic liberties of the United States Constitution and cannot be abridged by the court system. If a party in a civil or family law case believes that an error has been made at the original trial., then that party has the right to file an appeal with the Oregon Court of Appeals.
Writ of certiorari – also known as certs, these take place when a higher court orders a lower court to send a case for review.
Writ of habeas corpus – these appeals help guilty parties find relief against a guilty conviction. These appeals can be pursued if an individual is not satisfied with the outcome of their original appeal or they have been denied a writ of certiorari.
Both sides of a case can file an appeal in the same case, which on the surface may sound confusing. A situation where this might apply is if an appellee wins a judgment for damages, but is not satisfied with the amount, they may appeal the decision.
You have lost your battle in circuit court or before an administrative board or you won and the other side has filed an appeal. You now are faced with what will be the most important decision in the case, who to hire as an attorney for your appeal. Even if you had a good trial attorney, they likely do not have the skills needed to handle Oregon appeals.
Since an appeal is based totally on the record already before the court, a good appeals attorney must be able to convince the appeals court based only on the transcript, exhibits and pleadings. Therefore, the attorney must be able to carefully read these and interpret them for the court. It is important for the attorney to write clearly and persuasively. But, most important, a great appeals attorney must be able to tell your story to the court so that you know you are heard and the court understands the facts and the issues.
A great experienced appeals attorney will have all of the above skills and will know the appeals judges and the sometimes complex rules of the court. If you want your case to be heard and to have the best chance possible of winning the appeal, you should hire an experienced appeals attorney.
You have the right to appeal a decision of the circuit court or an administrative board. However, you totally lose this right if you do not file a timely notice of appeal. Virtually nothing else in the law is as absolute as the requirement of a notice of appeal. The reason for this is that the appeals courts do not have jurisdiction to take the case if a timely notice of appeal is not filed.
This rule is the same in every state. When Katrina hit New Orleans, people would have lost their right to appeal even though the court houses were destroyed and attorneys offices and records were gone. However, the Louisiana legislature passed a law granted an extension for that one occasion so that people would have the chance to protect their rights to appeal.
The Notice of Appeal must be timely filed, in the correct form and served on the right people including the transcript coordinator, the circuit court, the Court of Appeals, the opposing attorney or party. If all of this is not done, you lose your right to appeal.
If you get a ruling from the circuit court or from an administrative board that you do not like, contact an Oregon Appeals Attorney. They can make sure that the notice of appeal is timely and correctly filed and served preserving your right to challenge the ruling at the Court of Appeals.