Judge & Jury in a Family Law Case… Who Decides What?

If you have a family law case that is going to be heard before a jury, it may be helpful to understand which issues will be decided by the judge, and which will be decided by the jury.

The Jury can determine:

  1. Fault in the breakup of the marriage-  a finding of fault is taken into consideration when it is time for the split of the property.
  2. Characterization of property- whether certain property is marital (community) property or the separate property of one of the parties.
  3. Type of conservatorship of the children (Joint managing conservatorship or sole managing conservator/possessory conservator)
  4. Right to determine domicile of the children & other parental rights
  5. Issues about the validity or existence of a marriage, when these are in dispute (Does an informal marriage exist between these two people? Is this marriage void?  Are the parties entitled to an annulment?)

The Judge can determine:

  1. A “just and right” division of the estate
  2. Amount of child support to be paid and by whom
  3. Terms & conditions of access & possession (visitation)

Here are some factors to be considering in deciding whether or not YOU want to ask for a jury, and how to handle the case once a jury is involved.

  1. History of the case: Sometimes depending on the history of the case and how the Judge has ruled for or against you, then choosing a Jury is wise; however if the Judge knows the history of your case because of length or circumstances leaving those choices to the Judge may be best.
  2. Time and money: Jury trials typically are longer as you have to go through extra steps, voir dire (picking a Jury) timed opening and closings and time for the attorneys to discuss issues with the Judge outside of a jury.   A standard Divorce with Property and Children could be as short as 8 hours to as long as 3 days (sometimes more) where as a Jury trial typically is at least 3 days and up to 7 to 8 days; then after the Jury verdict, the Judge still has to rule on the non-jury issues, which again may take 1 to 2 more days.   Taking that into consideration the litigant has to understand a Jury trial may be more costly in money, time and emotion.
The above list covers the most common issues that you may see in a family law case that goes to the jury. Many people mistakenly believe that the jury will decide everything, and that the judge is just there to put a stamp of approval on the jury’s decision. That is not the case.
A divorcing party has to take time to discuss all of these issues with their attorney.
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