Can I get a jury trial for my
Texas divorce?” That question comes up frequently and it’s especially common
when one party does not trust the assigned judge. One party might feel
that a jury would be fair when a judge might not appreciate the situation.
But jury trials are not common in
Texas divorces. They are the exception, not the rule. They are limited to very special
family law cases.
Jane filed for
child support for her two children. Her ex, Bill, alleges she earns more income than
she says she does. Bill wants a jury to hear his evidence about Jane’s
income. Is this possible?
Sometimes, but Not this Time
Child support matters are only heard by a judge; after hearing the evidence from both sides,
the judge determines the child support obligation according to the
Texas Child Support Guidelines.
The Family Code contains specific restrictions on the right to trial by
jury. A jury verdict is not available in the following instances:
- the determination of whether the marriage of a minor is voidable, Tex.
Fam. Code § 6.104
enforcement of decree of
divorce or annulment, Tex. Fam. Code § 9.005
- issue of unconscionability of a premarital agreement or a partition or
exchange agreement, Tex. Fam. Code §§ 4.006, 4.105
- adoption, Tex. Fam. Code Ann. § 105.002(b) a suit to determine parentage,
Tex. Fam. Code § 105.002(b)
child support, Tex. Fam. Code § 105.002(c)(2)(A)
- specific terms or conditions of possession of or access to a child, Tex.
Fam. Code § 105.002(c)(2)(B)
- any other right or duty of a possessory or managing conservator other than
the right to designate the primary residence, Tex. Fam. Code § 105.002(c)(2)(C).
Why can’t I have a jury?
Family Jury trials have been on decline for many years especially in the
family law realm. While many cases are set trial, very few are tried all the way
verdict this number is even less when it comes to Jury Trials. Several
of the reasons for the decline in the jury trial are:
- The limited issues which can be presented to the jury for final determination;
- The issues which are ultimately presented to the judge for final determination;
- The significant cost of a jury trial, including expert fees, attorney fees,
and general costs;
- Emotional well-being of the parties and the children involved;
- Preservation of the family unit and relationship to the extent possible;
- Lack of trust in the judicial and jury system
- Fear of having a loser or winner declared;
mediation requirements in local rules
- don’t go to trial
- They get settled
This is due because there are many opportunities you have to settle your
case before it ever makes it to the courtroom.
Mandatory mediation for many types of cases helps to facilitate settlement. Even if
mediation is not mandatory most parties tend to engage in some form of alternative
dispute resolution before trial, as it is far less expensive than preparing
for and conducting a trial.
Even if parties do not engage in formal mediation, it is still very common
to attempt to resolve the matter through attorney led negotiation as opposed
to trying the case before a jury.
What Family Law Issues can a Jury Hear?
In Section 105.002(c)(1), the Texas Family Code specifically tells a judge
that they may not contravene a jury verdict on the following issues:
- the appointment of a sole managing conservator;
- appointment of joint managing conservators;
- the appointment of a possessory conservator
- the determination of which joint managing conservator has the exclusive
right to designate the primary residence of the child; and
- the determination of whether to impose a restriction on the geographic
area in which a joint managing conservator may designate the child’s
A party is also entitled to a binding jury verdict on:
- the existence of an informal marriage,
- enforceability of premarital and partition and exchange agreements (but
not the issue of unconscionability),
- actual and constructive fraud, and
- the amount of reasonable attorney’s fees
As you can see, the types of cases that are heard before a jury in
divorce and divorce related cases is very limited. And even in the cases listed
above, it is still very rare to actually make it before a jury.
The Texas legislature determines which cases are eligible for jury trials.
There are many public policy reasons to require most
family law cases to be heard before a judge and not a jury.
The sheer volume of
family law cases would clog the court system if every case could be heard by a jury.
Many of the above types of cases are time sensitive. For example,
child custody cases need to be resolved in an expeditious manner as young children need stability
and waiting several months for a jury trial is just not realistic.
These types of cases have monetary components that typically need to be
addressed almost immediately such as
child support and medical expenses.
- In domestic violence matters, a person’s physical safety is often
at stake and orders need to be issued immediately not several months down
the line in front of a jury.
What is a Jury Trial?
In Texas, cases may be decided by a jury or a judge dependent upon what
type of case is being tried. A trial before a judge is often referred
to as a “bench trial”. A jury trial is heard in front of a
jury composed of twelve individuals.
In a bench trial the judge is the sole decision maker. In a jury trial
the twelve jurors have the decision-making power.
Upon a case being called for a jury trial, both the petitioner’s
Texas divorce lawyers participate in the selection of twelve jurors. Each lawyer is allowed
to question jurors to uncover any potential bias.
divorce lawyer is allowed to remove a certain number of jurors “for cause”
from the panel. The judge oversees the jury selection process and is the
ultimate decision maker in removing additional jurors after the attorneys
have exhausted the “for cause” removals. Any juror may be
removed by the judge if there is a clear bias on the part of the juror.
Pros and Cons of a Jury Trial
- Twelve people hear your claim as opposed to just one judge
- Jurors might be persuaded by emotions which can result in higher monetary
awards for the innocent party
- The threat of “fault” being exposed in courtroom full of jurors
may lead to a settlement not otherwise possible.
- Increased costs of your case
- The time it takes your case to be resolved could be greatly increased as
it typically takes several months to have a jury trial heard
- Jurors typically have no knowledge of the law which may result in them
being persuaded by emotions which could not be in your favor if you are
the party at fault
Do you really want a jury?
Divorce is without question one of the hardest events in any person’s
life. Every family is different therefore each
divorce will be unique with its own set of facts and circumstances.
Knowing and understanding all your rights as it relates to the law is critical.
Whether to pursue a jury trial in your case is no different. Discuss and
explore all your options with your attorney and make the choice that best
suits the needs and goals of your case.
If you want to know more about what you can do,
CLICK the button below to get your
“16 Steps to Help You Plan & Prepare for Your Texas Divorce”
Other Articles you may be interested in:
- 6 things You Need to Know Before You File for Divorce in Texas
- I Want a Texas Divorce but My Husband Doesn't: What can I do?
- Am I Married? - Marital Status in Texas
- Can I sue my spouse's mistress in Texas?
- 6 Tips - On How to prepare for a Texas Divorce
- Roadmap of Basic Divorce Procedure in Texas
- Child Custody Basics in Texas
- 6 Mistakes that can Destroy Your Texas Divorce Case
- 10 Quick Tips About Parental Visitation
- Does it Matter who Files First in a Texas Divorce?
Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers
The Law Office of Bryan Fagan routinely handles matters that affect children
and families. If you have questions regarding
divorce, it's important to speak with one of our
Houston, TX Divorce Lawyers right away to protect your rights.
divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and
developing a strategy to meet those goals.
Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online
form. The Law Office of Bryan Fagan handles
Divorce cases in Houston, Texas, Cypress, Klein,
The Woodlands, the FM 1960 area, or surrounding areas, including
Fort Bend County and