When it becomes necessary to go to court in a family law dispute, there are several things you expect to obtain through the litigation process. One of the most basic is that you’ll receive a fair hearing and a decision made by an impartial judge. However, what happens when you find out information that calls that expectation into question?
If it turns out that the judge in your family law case has a history with your ex and/or your ex’s attorney, Florida’s court rules give you certain options. Making sure that you get a truly fair trial may mean knowing how to use those options to your maximum benefit, which is one more reason (among the countless others) why you should be sure you have an experienced South Florida divorce attorney representing you.
So, what can you do if you find yourself in that kind of circumstance where your judge has a connection to the other side? There’s a recent case that serves as a real-life example. O.B. was a husband who filed for divorce in Miami-Dade County. In mid-June, the court held a hearing on several motions. Immediately after the hearing, the husband discovered that the opposing counsel wasn’t just his wife’s divorce attorney. A few years earlier, that lawyer had also been the judge’s divorce lawyer.
According to the husband, neither the lawyer nor the judge had disclosed that past relationship. Obviously, this was a cause for concern for the husband. As most people know, divorces are often intensely emotional cases. Someone who gets a positive result in her divorce might feel a strong sense of gratitude toward her divorce lawyer. That concern was enough to make O.B. fearful that his divorce case might be less than 100% fair.
When that happens, you can file what’s called a “motion to disqualify” the judge. That simply means that, if granted, the judge declares herself to be unable to hear your immediate case and removes herself from all future hearings and rulings in that case. To win this motion, you need to present certain information to the court as a valid basis for your request to disqualify the judge. Without an adequate basis for your request, the judge simply will deny your motion as “legally insufficient.”
Replacing the judge in your case requires evidence of a ‘personal bias’
Disqualification of the judge, under Florida’s rules, is allowed when “the judge’s impartiality might reasonably be questioned,” which includes situations where “the judge has a personal bias or prejudice concerning a party or a party’s lawyer.” Note that this bias can be positive or negative in nature.
O.B.’s judge denied his request, asserting that it was legally insufficient. The appeals court, however, concluded that it was sufficient. The key to the husband’s success wasn’t the relationship itself; it was the failure to disclose it. The law required disclosure of the relationship and that failure to disclose was enough to create an “objectively reasonable fear” of bias the judge in favor of the wife and her lawyer.
Once you’ve shown that your fear of potential bias is not objectively unreasonable, then proceeding with a different judge is the correct result.
Your Florida divorce can be filled with twists, turns and unexpected bumps in the road, like finding out that the judge hearing your divorce was previously represented by the lawyer now working for your ex. To make sure you are prepared, and capable to address, any of those surprise twists, turns and bumps, you need an experienced advocate on your side. The skilled South Florida divorce attorneys at Sandy T. Fox, P.A. are here to be that advocate. Our attorneys have many years of offering clients effective representation in wide array of family law cases. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.