Substitution of Judge under Wisconsin law

July 22, 2016 Divorce

Did you know that if you are going through a divorce, and you don’t like a particular judge assigned to your case, that you have the right to substitute the judge? Well, you do, with some limitations. You also don’t get to pick the new judge assigned the judge, you only have the right to substitute the judge you don’t like. You don’t have to offer any reasons or explanation either. However, the request has to be made generally within 60 days of the commencement of the action, which is more fully explained down below, and if you have appeared at all in a contested matter in front of the judge, you waive the right to substitute, even if done within the 60 days.

Sec. 801.50 Substitution of Judge. (1) “Any party to a civil action or proceeding may file a written request, signed personally or by his or her attorney, with the clerk of courts for a substitution of a new judge for the judge assigned to the case. The written request shall be filed preceding the hearing of any preliminary contested matters and, if by the plaintiff, not later than 60 days after  the summons and complaint are filed or, if by any other party, not later than 60 days after service of a summons and compliant upon that party. If a new judge is assigned to the trial of a case, a request for substitution must be made within 10 days of receipt of notice of assignment, provided that if the notice of assignment is received less than 10 days prior to trial, the request for substitution must be made within 24 hours of receipt of the notice and provided that if notification is received less than 24 hours prior to trial, the action shall proceed to trial only upon stipulation of the parties that the assigned judge may preside at the trial of the action. Upon filing the written request, the filing party shall forthwith mail a copy thereof to all parties to the action and to the named judge.”

To reiterate the basic time line, it is 60 days from date of filing of the summons and petition for divorce, if you are the Petitioner (the person filing the case) and 60 days from service of the Summons and Petition for Divorce (if you are the Respondent) and responding to the divorce case.

If you receive notice of the assignment of a new judge, which is sometimes done in late July before August 1, where the judges get rotated in many Counties in the state, you have 10 days to request a substitution from receipt of the formal notice from the court.

Judges are human beings and have feelings, just like the rest of us. Quite frankly, judges do not like to be substituted. While it is your only case and you may never be in court again, many times in a lawyer’s career, they will have multiple occasions both before and after your individual case, where the lawyer will need to appear before this particular judge. The judge may ask the lawyer why they substituted on the case, and it can be embarassing  for the lawyer to have to respond. It is for that matter that if you pull a particular judge on your divorce case and are thinking of substituting on that judge, that you need to discuss this very carefully with your divorce lawyer on whether that is the right decision to make on your case. Since you have no say so or input on who the new judge is going to be, the old saying is “be careful what you wish for.” You may substitute the judge you thought might be bad for your case, and wind up worse off with an even more difficult judge on your case. You only get one kick at the cat, so you cannot substitute a second time.