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.
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
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;
- Mandatory 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 primary residence.
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 and respondent’s Texas divorce lawyers participate in the selection of twelve jurors. Each lawyer is allowed to question jurors to uncover any potential bias.
Each 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 FREE E-book: “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, PLLC | Houston, Texas Divorce Lawyers
The Law Office of Bryan Fagan, PLLC 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.
Our 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, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.