Stay Pending Appeal

An appellant who wants the trial court’s judgment suspended while the case is being appealed, must request a stay and post a bond to ensure that, if the trial court’s judgment is affirmed, there are funds to pay whatever is required.

For example, in the District of Columbia, Rule 8 of the Rules of the DC Court of Appeals governs.  To obtain a stay pending appeal the appellant must first file a motion in the Superior Court (the trial court) within thirty days of entry of judgment.  That court decides whether to grant a stay and on what terms.  The Superior Court’s decision on the stay is also appealable.

Prior to 2002, the law in DC had been that an appeal automatically stayed the final judgment of divorce.  Many interesting and potentially disastrous consequences flow from a stay of the judgment of divorce.  Except where noted below, these consequences are essentially the same in all three jurisdictions.  If the divorce judgment is stayed:

  1. You’re still married so you cannot remarry.
  2. If you die, your spouse is your widow or widower and has important rights with respect to your pension, 401(k) account, intestate estate (if you have no Will) and the right to elect against your Will if you have disinherited him or her.  In Virginia your spouse is entitled to a share of your augmented estate which includes non-probate assets and certain property transferred during your lifetime.
  3. If you and your spouse own the former marital residence (or other real property) as tenants by the entirety and the divorce judgment is stayed then you still own it in that peculiar old common law tenancy.  If you die, he or she takes the whole property, you cannot leave your interest in the home to the kids, you cannot borrow against or assign your interest, etc.
  4. In Maryland and DC you’re still earning marital property and increasing the marital portion of your pension and retirement accounts every day when you go to work.  If the case is remanded for a new hearing your further accumulation of money, property, pension credits, etc. may be on the table for equitable distribution at that future trial.

It’s definitely a case of “be careful what you wish for” when you seek to stay of a judgment of divorce.

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