What Is the Difference Between a Writ and an Appeal?

prepare-family-law-courtYou’ve just had a hearing at the trial level and you lost. You think the judge really botched the law and you want a chance to let a three justice appellate panel review the order. In this case, you would definitely file an appeal, right?

Not always! In many instances, you could actually be required to file a request for writ relief and you could lose an otherwise winnable case if you were required to do so and did not! So when do you file a writ and when do you file an appeal?

First, let us address the practical differences between an appeal and a writ. Think of appeals as non-emergency cases and writs as emergency cases. Appeals can take a long time because the appellate courts are so busy. In California a party can reasonably expect the appellate court to rule on the appeal in about one year from the date the notice of appeal is filed. Also, in California, the judges are required to issue a written opinion in every case explaining their reasoning for either affirming or reversing the judgment. This is one reason why appeals take so long.

Writs allow a party, for lack of a better term, to “cut the line.” You can get a decision from the appeals court in as little as a few hours if the situation requires it. Writ relief is one hundred percent discretionary and, unlike in appeals, the Court of Appeals won’t explain its reasoning for denying relief it doesn’t want to.

The most prominent question (but not the only question) in determining whether an appeal or a writ request should be filed is determining if the order made by the trial judge is considered “final.” Final orders are described in Code of Civil Procedure section 904 through 904.5 Here are example of family law orders that are final:

  • Any judgment where issues are not bifurcated (bifurcated judgments have their own complicated appellate procedures to determine if they are final).
  • Any child support order, regardless if it is made before or after trial.
  • Any spousal support order, regardless if it is made before or after trial.
  • An order on a post-judgment RFO that requires no further action by the trial court.
  • Domestic Violence Restraining Orders.
  • A need and ability based attorney fee award made before or after a trial.

Final orders need to proceed by appeal absent extraordinary circumstances that make appellate relief impractical. A good example of a situation requiring writ relief in a final order was in Alan S. v. Superior Court. In that case, an attorney fee award was being challenged and if it wasn’t resolved immediately, the losing party could not retain their attorney and it would thus gravely affect the rest of the case. The losing party could not wait for an appeal, thus emergency writ relief was appropriate.

What family law orders must proceed by writ relief?

Here is a list of the most common orders that must proceed by writ:

  • A prejudgment order on child custody or visitation made either ex parte, or at a Request for Order hearing.
  • An order for exclusive use and possession made before judgment.
  • Hearings on discovery motions.
  • A hearing denying a continuance.
  • An order denying a motion to quash a case for lack of personal jurisdiction.

Appellate litigation can be difficult and complex and it is vitally important that you understand your rights. That is why it is essential that you contact a qualified family law attorney who handles writs and appeals to discuss your case.

Please contact us if you are considering a divorce from your spouse, a legal separation, have questions regarding a possible appeal or writ. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

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www.bickfordlaw.com