APPEALING TO FORCE THE DIVORCE JUDGE TO SET A HEARING OR ISSUE A RULING

You should appreciate that nearly all divorce court judges are responsible for managing thousands of other cases besides yours.  Nearly all judges are diligent, and do their absolute best to issue rulings or set hearings as soon as possible under the circumstances.  That said, there are certain deadlines set by statute, rules of procedure, and rules of judicial administration.  

Most of the time judges adhere to these deadlines, and in many circumstances, besides dealing with the annoyance of a delay, there is no real harm if a judge takes a little longer to do their job.

But what do you do if a delay is unacceptable?  The remedy for this situation is to seek an order form the appeals court that orders the divorce court judge to take action immediately. The order from the appellate court that directs your judge to take immediate action is known as a Writ of Mandamus.  The process for obtaining a Writ of Mandamus to require your divorce court judge to take action is explained in further detail below.

Unlike other appeals, there is not a defined deadline for filing a Petition for Writ of Mandamus.  This makes sense, as one of the primary purposes of the Writ is to force action after an excessive delay.   Unlike most other appeals, when you file a Petition for Writ of Mandamus you file directly with the appellate court. Further, instead of filing a notice of appeal, your filing has to serve as an appellate brief that explains exactly why the appellate court needs to take action.

If your Petition for Writ of Mandamus is convincing, the appellate court will require the other party to file a response to your request for the Writ, which is essentially equivalent to an Answer Brief.  Thereafter, you will be permitted to file a response to the other party’s response before the appellate court makes a final decision.

Filing a Petition for Writ of Mandamus requires a careful analysis.  Although judges are supposed to be impartial, they do represent a “jury of one”.  It may be reasonable to think through whether or not seeking the Writ of Mandamus to make your judge act faster is the best choice in your case, because a judge could become aggravated when finding out you sought out the Writ (especially when the reason for the delay is due to the complexity of a trial and causes no real problems).

If you file a Petition for Writ of Mandamus you need to establish that the trial judge has failed to act in accordance with a mandatory (not discretionary) deadline or that there has been an excessive delay in issuing a ruling.

There are other situations when seeking a Writ of Mandamus is appropriate, but in Florida family law cases the process is typically used to require a judge to take an action such as setting a hearing or ruling on a trial result.  The bottom line is that if a divorce court judge refuses to remove themselves from your case, you should seek out a qualified appellate lawyer to determine if there is a basis for seeking a Writ of Mandamus.  Given the applicable time deadlines, you should attempt to seek assistance of appellate counsel as soon as possible.

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