In Florida, Why Your Case May Be Heard By a Magistrate When Dealing With a Divorce, Modification or Paternity Case?

282848_law_library-1.jpgIn a Florida divorce, post divorce or paternity case, there may be times the case is referred to a general magistrate instead of the judge. Often, a general magistrate’s calendar is more accessible than the judge’s calendar due to volume of cases. The magistrates have the power to listen to cases and make a ruling based on the evidence presented, which then must be provided to the judge before being entered as a court order. Therefore, the judge still has control over the case, but the magistrate is helping move the cases along.

A referral to a magistrate is generally done for temporary needs hearings, which is when a party is requesting a temporary order be entered with the court until the final hearing so that each party has what s/he may need to get to a final hearing, like child support, alimony, or use of the home. The reason is that the judge may not be able to get the parties in for a longer period of time and the magistrate can generally see them in a couple of months. It is also common for the case to be referred to the magistrate when a lawyer does not represent one or both parties.

How does a case get referred to a general magistrate? When certain documents or motions are filed with the court, the court may tag them to be referred to the magistrate instead. For example, when a party files a Motion for Temporary Needs, the judge may sign an order referring the case to the magistrate’s office. When that happens, both parties receive a copy of the order and have ten (10) days to object to the transfer. In Florida, use of a magistrate has to be by consent, so if one party objects, then it will not go to the magistrate but must be heard by the judge instead. This may mean that the hearing is postponed for a time to correspond with the judge’s calendar.

Another way the case may be referred to the magistrate is if one party files on his or her own, the legal term is “pro se.” When that happens, the case is typically managed by the family court services and is tracked through the magistrate’s office. This allows the court services to oversee a little more of the case to make certain that requirements have been met by both parties, for example, mandatory disclosure (e.g. financial affidavit is filed with the court).

Once a magistrate hears the case, the magistrate then drafts a report and recommended order to the judge. The report and order are sent to both parties and they have the right to object or file for exceptions to the report. This may be done if the report and evidence do not match, or if the magistrate’s order is in conflict with the evidence provided. This may happen if a father provides evidence that mother has a severe alcohol and drug issue and mother does not have evidence showing otherwise, but the child is placed in mother’s care. If that occurs, both parties have ten (10) days to file their exceptions with the court and ask for a hearing with the judge. Whichever party files is required to get a transcript of the original hearing to be provided to the judge and other party before the hearing on the exceptions.

Florida family law courts are generally at capacity, so the use of magistrates is helpful to having your case heard in a timely manner. However, since there are so many caveats, like both parties agreeing, it is wise not to bank on the hearing being held as quickly as you may hope. In dealing with such cases it is important to breathe through the delays, they will happen and managing the stress where you can may be your saving grace through the process. To better understand your rights, options and what to expect, you should speak with an experienced family law attorney in your area.

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