Changing Your Divorce Judge

By Staff Writer

Be the issue support, custody, divorce or a division of your assets and liabilities, once your case has been assigned to a Judge, you will quickly form an opinion as to his or her qualifications and fairness. Especially if the Judge has issued a decision which is unfavorable to one or more of your positions, you may question whether or not you can have another Judge assigned to hear your case.

Having a new Judge appointed is not easy. While there are rules that govern the refusal of a Judge, the requirements are stringent and, in some cases, are reliant on the Judge’s agreement to step down. These stringent requirements are put into place for a reason.

Our legal system is based on the principle of obtaining a fair and neutral decision. If parties were free to hop from Judge to Judge until they found that agreed with their position, our legal system would cease to exist as we know it. This is not to say that moving your case to a new Judge is impossible. In most jurisdictions, if you have brought the cause of action against your spouse, you are free to discontinue your cause of action provided that certain requirements, such as timing, are met.

If, after filing your action, you learn that your case has been assigned to a Judge with a reputation for being unfavorable to a position which you will assert, you may be able to discontinue your action only to recommence it with the hopes of having the case assigned to a new Judge. To determine if this possibility is feasible or even wise, you should carefully discuss the issue with your attorney to learn of the specific requirements and possible consequences to you and your case. If you cannot discontinue your action, it is possible that the case can be moved to another Court in order to be consolidated with another related case.

A common example is if you have one proceeding pending in Family Court dealing with a specific issue, such as custody or child support, and also have a matrimonial action pending in front of a different Judge. Again, dependent on the specific rules of your particular jurisdiction, you may be able to have the Family Court action moved, or consolidated, with the divorce. For some parties, this is a great way to get rid of an unfriendly Judge. Absent procedural gamesmanship, it is incredibly difficult to have your case moved to a different Judge.

Judges, like attorneys, are governed by ethical rules. In some situations, they are prohibited from hearing a case and must step down (such as when one of the parties is a close family member or when the Judge has a personal interest in the case) while in others, they must advise the parties of a potential conflict. If the parties consent, despite being advised of the conflict, the Judge may continue to hear the case. If one of the parties does object, however, the Judge must recuse him or herself. An example of this type of recusal is when the Judge knows one of the parties or a member of one of the parties’ family.

Forcing the Judge to step down absent his or her voluntary recusal is difficult. You cannot merely assert that the Judge is biased against you. If this were the case, virtually every case would bounce from Judge to Judge whenever a decision was rendered that was unfavorable to one of the parties. If you truly believe that you have grounds to have a Judge forcibly removed, you should speak with an attorney in your area. He or she will be able to advise you of the procedural steps you must take to seek the recusal and whether or not taking such steps would be worthwhile.