An Authoritative Guide to Appealing A Divorce Decree In Virginia

The High Stakes of an Appeal: What’s on the Line?

Deciding to appeal a divorce decree is a significant choice with profound consequences. The final order from the Circuit Court dictates your financial future and parental rights. An appeal challenges the very foundation of that order, seeking to correct a legal error that could have unfairly impacted equitable distribution, spousal support, child custody, or child support calculations.

The stakes are immense. A successful appeal could mean the difference between a fair and unjust division of marital assets accumulated over a lifetime. It could rectify an inequitable spousal support award that either leaves one party destitute or unfairly burdens the other. In my years of practice, I’ve handled cases where a misapplication of the factors under Virginia Code § 20-107.1 (Equitable Distribution) resulted in a financial outcome that was hundreds of thousands of dollars off from what the law intended. Similarly, a misinterpretation of the child custody factors in § 20-124.3 can lead to a parenting arrangement that is not truly in the child’s best interest.

Failing to appeal a flawed decree, or failing to execute an appeal correctly, has the effect of cementing those errors. The doctrine of res judicata means the issues decided in the divorce are considered final. Unless you can meet the stringent requirements for a future modification—which requires a material change in circumstances and doesn’t correct past errors—the flawed decree will govern your life for years to come. The 30-day window to file a Notice of Appeal is therefore the only opportunity to challenge the legal correctness of the judge’s original decision. It is a path that requires careful consideration of the potential benefits against the significant costs and the high bar for success.

The Virginia Appellate Process: A Step-by-Step Breakdown

The process of appealing a divorce ruling in Virginia is a rigid, multi-stage journey from the local Circuit Court to the Court of Appeals of Virginia. Each step has its own strict deadline and procedural requirements. A single misstep can result in the dismissal of your appeal, regardless of its merits. It is a marathon, not a sprint, demanding precision at every turn.

Having guided numerous clients through this maze, I can’t stress enough how different this world is from the trial court. The focus shifts from presenting evidence and telling your story to persuading a panel of judges, through written legal arguments, that the trial judge committed a reversible error. Here is the typical sequence of events.

Step 1: The Final Order and the Notice of Appeal

The clock starts ticking the moment the judge signs the final divorce decree. You have exactly 30 days from the date of entry of that order to file a Notice of Appeal. This is a simple, one-page document filed with the clerk of the same Circuit Court that issued the decree. It also must be served on the opposing counsel. This deadline, found in the Rules of the Supreme Court of Virginia, is jurisdictional and absolute. If you are one day late, your right to appeal is lost forever.

Step 2: Ordering and Filing the Transcripts

The appeal is decided based on the “record” of what happened in the trial court. The court reporter’s transcript of the hearings and trial is a critical part of that record. Within 10 days of filing the Notice of Appeal, the appellant must file a written statement with the Circuit Court clerk certifying that the transcripts have been ordered from the court reporter. The transcripts themselves must typically be filed by the court reporter within 60 days of the final order. Failure to adhere to these deadlines can be fatal to your appeal.

Step 3: The Record on Appeal

The clerk of the Circuit Court assembles the “record on appeal,” which includes all pleadings, motions, exhibits, orders, and the filed transcripts. This collection of documents is what the Court of Appeals of Virginia will review. It is crucial to ensure this record is complete and accurate, as the appellate court will not consider anything outside of it.

Step 4: The Petition for Appeal

This is where the substantive legal work begins. The appellant must file a Petition for Appeal with the Court of Appeals of Virginia. This is not the full argument, but a condensed version that must persuade the court to even hear the case. It identifies the “assignments of error”—the specific legal mistakes you claim the trial judge made—and provides a concise argument and legal authority for why the appeal has merit. The court reviews this petition and decides whether to grant or deny the appeal. If it is denied, the case is over unless you seek a further appeal to the Supreme Court of Virginia, which is rarely granted.

Step 5: The Briefing Schedule

If the Court of Appeals grants the appeal, it will set a briefing schedule. This is the core of the appellate advocacy.

• Appellant’s Opening Brief: A comprehensive legal document, often 35-50 pages long, that lays out the facts of the case (as established in the record), the relevant law, and a detailed argument for each assignment of error. This is the appellant’s main opportunity to persuade the court.
• Appellee’s Brief: The other party (the Appellee) then files a brief in response, arguing why the trial court’s decision was correct and should be upheld.
• Reply Brief (Optional): The appellant may file a final, shorter brief to respond to points raised in the Appellee’s Brief.

Step 6: Oral Argument

In many cases, the court will schedule an oral argument. Here, the attorneys for both sides appear before a panel of three judges of the Court of Appeals. Each side is typically given 15-20 minutes to present their case and answer pointed questions from the judges. This is not a time for emotional pleas but for a sophisticated legal dialogue with the court.

Step 7: The Decision

After oral argument, the judges will deliberate. In a matter of weeks or months, the Court of Appeals will issue a written opinion. The opinion will either:

• Affirm: Uphold the trial court’s decision.
• Reverse: Overturn the trial court’s decision.
• Reverse and Remand: Overturn the decision and send the case back to the trial court with specific instructions to correct the error. This is a common outcome.

This entire process, from filing the Notice of Appeal to receiving a final opinion, can easily take a year or more. It is a significant commitment of time, resources, and emotional energy.

The SRIS Virginia Divorce Appeal Primer & Deadline Tracker

To challenge a divorce ruling in Virginia, you must act with speed and precision immediately after the final decree is signed. The initial 30-day period is the most critical. This primer is designed as a practical, step-by-step checklist to ensure you do not inadvertently forfeit your rights. Treat this as your immediate action plan.

1. Step 1: Identify the “Date of Entry”.

   Immediately locate the final divorce decree. Find the exact date it was “entered” by the court clerk. This is not necessarily the date the judge signed it or the date you received it in the mail. This date is stamped on the order. Your 30-day countdown begins from this exact date.

2. Step 2: Calculate and Calendar the 30-Day Deadline.

   Count 30 calendar days (including weekends and holidays) from the Date of Entry. This is the absolute, final day to file your Notice of Appeal. Mark this date in bold on every calendar you use. Then, set a personal deadline for yourself at least one week prior to this date.

3. Step 3: Secure a Complete Copy of the Final Decree.

   Ensure you have a complete, file-stamped copy of the final decree. This document is the trigger for the entire process and will be essential for your legal counsel’s review.

4. Step 4: Do Not Delay – Seek a Case Assessment Immediately.

   An appeal is not a do-it-yourself project. The procedural and substantive legal knowledge required is extensive. You must contact a law firm with specific experience in Virginia appellate law immediately. Provide them with the final decree and the Date of Entry so they can properly assess the viability of an appeal within the timeframe.

5. Step 5: Identify and Preserve All Potential Issues for Appeal.

   Think back to the trial. Did your attorney make objections that the judge overruled? Were there specific legal arguments made in motions that the judge rejected? An issue generally cannot be appealed unless it was properly “preserved” by raising it in the trial court. Make a list of every decision the judge made that you and your attorney believed was incorrect. This list will be the starting point for identifying the “assignments of error.”

6. Step 6: Inquire About Ordering Trial Transcripts.

   Ask your trial attorney for the contact information of the court reporter who transcribed your hearings. The process of ordering and paying for these transcripts needs to begin almost as soon as the Notice of Appeal is filed, so it’s wise to have this information ready.

7. Step 7: Prepare for the Financial Commitment.

   An appeal is a new and separate legal proceeding with its own costs, including filing fees, transcript costs, and significant attorney’s fees for the extensive legal research and writing involved. It’s essential to have a frank discussion about the potential costs at the outset.

Grounds for Appeal: Building a Viable Case

A successful challenge to a divorce ruling in Virginia cannot be based on dissatisfaction with the outcome. It must be built upon specific, demonstrable legal errors committed by the trial judge. The Court of Appeals does not re-weigh evidence or second-guess a judge’s credibility determinations; it reviews the record for legal mistakes under established “standards of review.”

In my decades of practice, I’ve seen that the most viable appeals are founded on one of three primary grounds. Understanding these is key to assessing whether you have a legitimate case for appeal.

1. Error of Law (De Novo Review)

This is the strongest ground for appeal. It means the judge incorrectly interpreted or applied a Virginia statute or legal precedent. The appellate court gives no deference to the trial judge’s legal conclusions and reviews the issue “de novo,” or from a fresh perspective.

Example: A judge rules that appreciation on a husband’s pre-marital investment property is entirely his separate property, despite the wife presenting clear evidence that marital funds were used to pay the mortgage and taxes, and that she personally contributed to its upkeep. This would be a misapplication of the equitable distribution principles in Virginia Code § 20-107.3, which mandates how to classify and value hybrid property.

2. Abuse of Discretion

In many areas of family law, such as spousal support amounts or specific child custody arrangements, judges are given broad discretion. An “abuse of discretion” occurs when a judge’s decision is so arbitrary, unreasonable, or unsupported by the facts that it is clear they exceeded their legal authority. This is a very high standard to meet. It’s not enough that the appellate court might have decided differently; the decision must be plainly wrong.

Example: A judge is required to consider all the statutory factors listed in § 20-107.1 when setting spousal support. If the judge’s written order or statements on the record show they completely ignored a critical factor, such as the 25-year duration of the marriage or one party’s significant health problems, an appellate court might find an abuse of discretion.

3. Insufficient Evidence (Clearly Erroneous Standard)

This ground argues that the judge’s factual findings were not supported by the evidence in the record. The standard here is whether the decision was “plainly wrong or without evidence to support it.” The appellate court will view the evidence in the light most favorable to the party who won at trial, making this a difficult argument to win. You are essentially arguing that no reasonable person could have reached the conclusion the judge did based on the evidence presented.

Example: A judge awards sole physical custody to a parent based on a finding that the other parent has a substance abuse problem. However, the trial record contains no evidence—no testimony, no drug tests, no police reports—to support this finding. The finding would be considered “clearly erroneous.”

Building a successful appeal requires a painstaking review of the trial transcripts and evidence to identify one of these specific, preserved errors. It is a forensic legal exercise, far removed from the emotional narrative of the divorce itself.

Common Mistakes to Avoid When Appealing a Divorce Decree

The appellate process in Virginia is a minefield of procedural traps and substantive hurdles. A single miscalculation can be fatal to your case. Over my career, I’ve seen many potentially valid appeals fail not on their merits, but because of avoidable errors. Awareness of these pitfalls is the first step toward a successful appeal.

1. Missing the 30-Day Notice of Appeal Deadline: This is the single most common and most devastating mistake. The 30-day deadline is jurisdictional. There are no exceptions for illness, miscalculating the date, or waiting for your attorney to call you back. If the Notice of Appeal is not filed with the Circuit Court clerk by day 30, the case is over.
2. Appealing Based on “Fairness” Instead of Legal Error: Many people want to appeal because the result “feels wrong” or “isn’t fair.” The appellate court does not care about feelings. It only cares about preserved legal errors. Your appeal must be grounded in a specific mistake the judge made in applying the law, not in a general sense of injustice.
3. Failing to “Preserve” Issues for Appeal: You cannot raise an issue for the first time on appeal. If your attorney did not object to a piece of evidence at trial, or failed to make a specific legal argument before the judge, that issue is likely “waived” and cannot be the basis for an appeal. A seasoned trial lawyer knows they are also playing to the record for a potential appeal and will make timely objections and motions.
4. Underestimating the Cost and Time Commitment: An appeal is not a quick or inexpensive process. It involves thousands of dollars in costs for transcripts and filing fees, plus substantial legal fees for the hundreds of hours required to review the record, research the law, and write persuasive legal briefs. The process can take a year or more, during which the original decree is often still in effect.
5. Trying to Introduce New Evidence: Clients often ask, “Can I show the appellate court the new emails I found proving my ex was lying?” The answer is unequivocally no. The Court of Appeals only reviews the record created in the trial court. The appeal is about whether the judge made an error based on the information they had at the time.
6. Confusing an Appeal with a Motion to Modify: An appeal attacks the original decree as legally incorrect from the start. A motion to modify accepts the original decree as valid but argues that circumstances have changed so significantly since the decree that it should be updated (e.g., a major change in income for support, or a parent needing to relocate for a job). These are fundamentally different legal actions with different standards.

Avoiding these mistakes requires foresight, meticulous planning, and the guidance of legal counsel with deep experience in Virginia’s appellate courts.

Glossary of Key Appellate Terms

The world of appellate law has its own language. Understanding these terms is crucial for anyone considering an appeal.

Appellant

The party who lost in the trial court and is initiating the appeal to a higher court.

Appellee

The party who won in the trial court and is responding to the appeal, arguing that the lower court’s decision should be upheld.

Notice of Appeal

The initial legal document filed with the trial court clerk that formally begins the appeal process. In Virginia, it must be filed within 30 days of the final order.

Record on Appeal

The official collection of all documents from the trial court case, including pleadings, motions, exhibits, transcripts, and orders, which is transmitted to the appellate court for review.

Standard of Review

The level of deference an appellate court gives to the trial court’s decision. This determines how critically the appellate court will examine a specific issue (e.g., de novo for legal errors, abuse of discretion for discretionary rulings).

Assignments of Error

The specific legal mistakes that the Appellant claims the trial judge made. These must be clearly listed in the Petition for Appeal and form the entire basis of the appeal.

Remand

An order from the appellate court sending a case back to the trial court for further action, usually with specific instructions to correct a legal error identified in the appeal.

Common Scenarios in Virginia Divorce Appeals

To better understand when an appeal might be appropriate, let’s explore a few realistic scenarios that I have seen parallel my clients’ situations over the years.

Scenario 1: The Misclassified Asset

Question: “My husband inherited a business during our marriage, and the judge classified it as 100% his separate property, even though I worked there for 10 years without pay and we used marital savings to expand it. The business is now worth millions. Can I challenge this divorce ruling?”

Analysis: This is a strong potential ground for appeal. Under Virginia Code § 20-107.3, property acquired by one spouse through inheritance is separate. However, the increase in value of separate property due to the significant personal efforts of either spouse or the contribution of marital funds can create a marital component. The judge’s failure to recognize the wife’s personal efforts and the infusion of marital funds as creating a marital interest in the business’s appreciation could be a clear error of law. The appeal would focus on the misapplication of the statute regarding “hybrid property.”

Scenario 2: The Ignored Prenuptial Agreement

Question: “We signed a valid prenuptial agreement that clearly defined how spousal support would be waived. At trial, the judge said he found the agreement ‘unconscionable’ and awarded my ex-wife substantial support anyway, without much explanation. Is this appealable?”

Analysis: Absolutely. Virginia law recognizes the validity of premarital agreements. While a court can set one aside, it must do so based on specific legal grounds (e.g., it was not entered into voluntarily, or it was unconscionable *at the time it was signed*). If the judge ignored a validly executed agreement without a proper legal basis, it constitutes a significant error of law. The appeal would argue the judge exceeded his authority by overriding a binding contract between the parties.

Scenario 3: The Custody Decision Without Findings

Question: “The judge gave my ex-husband sole physical custody of our children, but in his ruling from the bench, he just said he felt it was ‘for the best.’ He didn’t mention any of the ‘best interests of the child’ factors the law requires. Can I appeal?”

Analysis: This presents a potential case for an abuse of discretion. Virginia Code § 20-124.3 explicitly requires a judge to consider a list of specific factors when determining custody and visitation. A judge must make factual findings that support their decision in light of these factors. If the judge made a custody award without articulating the reasoning or showing consideration of the statutory factors, an appellate court could find this to be an abuse of discretion and remand the case back to the trial court to make proper findings.

Frequently Asked Questions About Virginia Divorce Appeals

1. How long do I have to appeal my divorce decree in Virginia?

You have exactly 30 calendar days from the date the final decree of divorce is entered by the Circuit Court clerk to file a Notice of Appeal.

2. What are the chances of winning a divorce appeal?

Statistically, the odds are against the appellant. The trial court’s decision is presumed correct. Success depends entirely on having a strong, preserved legal error in your case. A vague sense of unfairness is not enough.

3. Can I stop paying spousal support or following the custody order while the appeal is pending?

Generally, no. The trial court’s order remains in full force and effect during the appeal unless you specifically ask the court for a “stay” of the order, which is rarely granted in family law cases without posting a significant bond.

4. How much does it cost to appeal a divorce case?

The costs are significant. They include court filing fees, the cost of purchasing trial transcripts (which can be several thousand dollars), and substantial legal fees for the highly specialized work of appellate brief writing and oral argument.

5. Can I get my attorney’s fees paid for by my ex if I win the appeal?

It is possible. The Court of Appeals has the discretion to award attorney’s fees to the prevailing party, but it is not guaranteed. The decision often depends on the relative financial circumstances of the parties and the merits of the appeal.

6. What is the difference between an appeal and a motion for reconsideration?

A motion for reconsideration is filed in the same trial court, asking the same judge to reconsider their own ruling, and must be filed within 21 days while the court still has jurisdiction. An appeal is filed with a higher court (the Court of Appeals) asking them to review the trial judge’s decision for legal error, and the Notice must be filed within 30 days.

7. My trial lawyer was great. Do I need a different lawyer for the appeal?

Not necessarily, but appellate law is a specialized field. A great trial lawyer’s skills in the courtroom (examining witnesses, presenting evidence) are very different from an appellate lawyer’s skills (forensic record review, legal research, persuasive writing). It is often beneficial to have a seasoned appellate practitioner handle the appeal, or at least co-counsel with the trial lawyer.

8. If I win my appeal, is the case over?

Rarely. The most common outcome of a successful appeal is that the Court of Appeals “reverses and remands” the case. This means the case goes back down to the same trial court for a new hearing or decision, with instructions to apply the law correctly this time.

9. Can the other side appeal if I win my appeal?

Yes. The losing party at the Court of Appeals can petition for a further appeal to the Supreme Court of Virginia. However, the Supreme Court’s review is discretionary and granted in only a small fraction of civil cases.

10. Can I appeal just one part of the divorce decree?

Yes. You can (and should) be very specific in your appeal. For example, you can appeal only the spousal support award while accepting the court’s decisions on custody and property division.

11. What if I discovered new evidence after the 30-day appeal window closed?

An appeal is not the correct venue for new evidence. In very rare circumstances, you might be able to file a motion to reopen the case based on after-discovered evidence, but the standards are exceptionally high and difficult to meet.

12. How long does the entire appeal process take?

From filing the Notice of Appeal to getting a final decision from the Court of Appeals, you should realistically expect the process to take 12 to 18 months, and sometimes longer.

13. Is the oral argument like a new trial?

No. There are no witnesses, no jury, and no new evidence. It is a structured, timed legal debate between the attorneys and a panel of three judges, focusing entirely on the legal errors alleged in the briefs.

14. What does it mean for an issue to be “preserved”?

It means the issue was properly raised in the trial court. For example, if you wanted to argue a piece of evidence was inadmissible, your attorney needed to have objected to it during the trial. If they did not, the issue is “waived” and cannot be raised on appeal.

15. Is it worth it to appeal?

This is a deeply personal and strategic decision. It requires a cold, hard analysis of the likelihood of success, the potential benefit if you win, and the financial and emotional costs of the process. A confidential case review with a knowledgeable appellate attorney is the only way to get a realistic answer to this question.