“I can tell the judge HATES me.”

Exploring the legal requirements for the disqualification of Florida trial judges.

It can be disconcerting for a spouse in a divorce trial to get the impression that the judge dislikes them. Even worse, the judge could express outright disdain or anger at the spouse. If a party to a divorce proceeding feels the judge’s bias against them could impact the judge’s decision making in favor of the other party, Florida law provides potential legal remedies.

First, the Florida Code of Judicial Conduct provides that a judge should disqualify themselves from a case “in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where … the judge has a personal bias or prejudice concerning a party …”

Second, state statute provides that a party who is afraid they will not get a fair trial because the judge is prejudiced against them or biased in favor of the other party may file an affidavit explaining why they believe this. With the affidavit, the party must file a certificate of their attorney who officially represents them in the case stating that the affidavit is filed in good faith. The judge then “shall proceed no further” and another judge will be substituted.

Similarly, Rule 2.330 of the Florida Rules of Judicial Administration says that any party can file a motion to disqualify a judge along with the party’s lawyer’s certification that their client makes the motion in good faith. The motion must describe why the party fears they will not get a fair trial because of judicial “prejudice or bias.” The party must file the motion within 10 days of discovery of the reason they believe the judge is biased.

The judge does not decide whether the allegation of bias is true, but only analyzes whether the motion is legally sufficient. If it is, the judge must disqualify themselves.

The judge has up to 30 days from service of the motion to rule on it and if they do not meet this deadline, the motion is automatically granted, and the party can ask the clerk of court to assign a new judge.

If a party files a subsequent motion to disqualify against the second or subsequent judge in the same matter, that judge cannot be disqualified unless they rule that they are “in fact not fair or impartial in the case,” in effect ruling whether the allegation of prejudice is true.

If the underlying facts suggesting prejudice come out first at a hearing or in trial, the motion can be made verbally at the hearing and the judge must rule on the motion then and there. The party then must file the motion in writing.

An attorney can answer questions about judicial disqualification for bias or prejudice against a party to a divorce.

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  • The Law Office of Daniel E. Forrest represents individuals in Fort Lauderdale in high-asset divorce matters. Daniel Forrest is board-certified family lawyer and mediator serving the South Florida area.
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