Help! My Divorce Case Was Referred to the General Magistrate?
I JUST RECEIVED NOTICE THAT MY CASE IS BEING REFERRED TO THE GENERAL MAGISTRATE.
WHAT DOES THAT MEAN?
Why was my case referred to a General Magistrate?
Most Judges’ dockets are very congested. In an effort expedite the resolution of the thousands of cases filed every year, cases often are referred to General Magistrates.
Is the General Magistrate the same as a Judge? The short answer is “no.”
General Magistrates are attorneys and, similar to judges, they wear black robes, hear testimony, and rule on objections and evidentiary matters. However, because General Magistrates do not have the power to issue Final Orders requiring a party or parties to act (or refrain from acting), they differ from judges.
Instead of issuing a Final Order, the General Magistrate submits her report and recommendation to the Circuit Court Judge who assigned to your case. The report and recommendation must contain findings of fact, conclusions of law, and recommendations. Additionally, the General Magistrate must give notice to the parties that she has submitted the report and recommendation to the Circuit Court Judge. This notice usually comes by mail to the parties or their attorneys.
Do I have to submit my case to the General Magistrate?
No. Any party can object to the referral to a General Magistrate, so long as he does so within 10 days after service of the referral upon that party. Otherwise, the law assumes you consent to the referral. Additionally, a Party can object before the time a responsive pleading is due, if the referral occurred within 20 days of when action filed. A party waives the right to object to a referral actually made if the party participates in the hearing, but the party does not waive objection if there is a total lack of any referral order.
What does the Notice of referral to the General Magistrate have to tell me?
The notice of referral must state with specificity what the Court is referring to the General Magistrate . If the General Magistrate makes recommendations or findings of fact on issues that weren’t included in the notice of referral, those recommendations or findings have no effect. Every referral also must include other dry, standard language per Florida Statutes. If you’ve received a referral and want to know if it complies with Florida law, contact one of the family law attorneys at The Marks Law Firm for review of your documents.
If the General Magistrate’s Report and Recommendation get it wrong, am I stuck with them?
No! If a party disagrees with the report and recommendations, that party may serve “exceptions” (objections) to them. The party must serve these objections within 10 days of being served with the report and recommendation. It is important to timely file any exceptions— the failure to file exceptions on time will preclude further review of the report and recommendations. Furthermore, you have to explain your exceptions with specificity. Once the exceptions have been timely filed, the court may not enter the order or take action until after the hearing on the exceptions.
If I file exceptions to the general magistrates report and recommendation, will the Judge re-hear the entire matter?
No. The purpose of a hearing on exceptions is for the Judge to review the record to determine whether competent evidence. Supports the report and recommendations. If specific findings are not supported by competent evidence, the Judge may rule solely on those specific issues. It is important to remember the party filing the exceptions is required to file a record of the hearing, so if you are concerned about having a hearing before a General Magistrate, make sure to bring a Court Report to record what happens in front of the Magistrate. Of course, the best way to ensure your rights are protected, whether in front of a General Magistrate or Circuit Court Judge, is to bring qualified legal counsel to your hearing. The family lawyers at The Marks Law Firm have extensive experience in such matters and would be glad to talk with you about your case.