If you do not agree with the judge’s ruling, there are various options. To determine how to proceed, it is important to first determine whether the matter is pendente lite (prejudgment) or postjudgment.
Regardless of whether the ruling is prejudgment or postjudgment, it may be appropriate to file a motion for reconsideration in which you point out the court’s errors and point to information that may have been overlooked. In prejudgment matters, a motion for reconsideration may be filed at any time prior to the entry of the Final Judgment of Divorce. In postjudgment matters, a motion for reconsideration must be filed within 20 days of your receipt of the order and this deadline is non-relaxable, pursuant to the Rules of Court. It is also important to know that the Rules indicate that the judge who determined the underlying motion should also hear the motion for reconsideration.
Cases in the prejudgment or pre-divorce phase are always subject to modification of pendente lite. Changes in circumstances pending the resolution of your case should be reviewed on an ongoing basis. Additionally, it may be important for you or your attorney to preserve certain rights so you may address specific issues at the conclusion of your case, should your matter proceed to trial. For example, if you believe you are overpaying temporary support but have not been successful on modifying support during the pendency of your case, you have the right to seek a credit for the overpayment of support at a final hearing pursuant to a case called Mallamo. The same may also be true if you have underpaid support. These are very important considerations that need to be taken into account during the pendency of your case.
Interlocutory appeals take place during the pendency of a matter and are rare. An interlocutory appeal is made to the Appellate Division in the midst of a case and the higher court is asked to step in because the error believed to have been made at the trial level is so egregious it requires the court to intervene.
The more common appeal is filed after the final conclusion of your matter; said appeal must be filed within 45 days of receipt of the final order. Deference is given to the lower court’s findings as the trial court judge has a lot of discretion, presided over the case, made credibility findings as to the parties, etc. This sometimes makes the appeals process very difficult. Regardless of the merits of the underlying case, the appeals process is time consuming and expensive.
Diana N. Fredericks, a family law attorney at Gebhardt & Kiefer, P.C. Diana works with clients whose needs lie in all areas of matrimonial and family law.