Almost everyone has seen a television drama that depicts a contentious divorce, and at some point, the judge is called into question. This is not limited to good television drama, real people in divorce often wonder if they are bound to the judge they are assigned. They may also wonder if they can change the venue to a different, thus resulting in a new judge. The other question that comes up from people divorcing is if they have a right to have a jury determine the outcome and divide of property and other matters in conflict. These questions all stem from the natural desire to feel like things are being determined in a fair and just manner and often arise if a party feels they are not being heard or understood by the judge they currently have. The following blog will answer these questions and provide a brief insight into what your options are.
To answer the easiest and most straight forward question first, no, in a divorce you will not be granted a change of venue from the county. This is an option typically reserved for high profile, high public interest, and high media coverage criminal cases. This is not an option for a couple divorcing in the state of Indiana.
In respect to changing the judge, in the state of Indiana you have this right. It is possible to request to change judge twice in the lifetime of the case. The instances for requesting such a change are extremely limited. The first instance is if you make your request within the first 30 days after the date the divorce is entered on the chronological case summary.1
It is common for parties to ask for a provisional hearing with a divorce filing to address the custody and parenting time during the time the divorce works its way through the system. Even if a change of judge has been timely requested, the filing by either party of a motion for change of judge does not prevent the existing judge from deciding temporary child support, custody and parenting time.2
The second instance in which you may request a change of judge is after a divorce is completed. A trial judge has invested a great deal of time into the litigants and their children. However, it is common that one party feels aggrieved by the divorce and how the judge divided the property and resolved custody matters. Thus, if no post-post decree matter is pending (to avoid interrupting current proceedings), a party is entitled to only one change from the judge in a paternity or dissolution case in connection with petitions to modify that decree, regardless of the number of times new petitions are filed.
In any event, it is important to note that in any court, a magistrate or commission may hear the case, not the elected judge. In some counties, the elected judge may hear the case at the request of a party.
Ultimately, a change of judge is limited in divorce cases to within thirty (30) days of filing or one-time, post-divorce. There is no right to a jury trial in any divorce or paternity proceedings. This blog is written by advocates at Dixon & Moseley, P.C. who handle domestic cases throughout the state. It is written for general educational purposes only. It is not intended as legal advice or a solicitation for services. It is an advertisement.