5 Decisions a Jury Can Make

Walters Gilbreath, PLLC

If you are currently going through a family law case in Texas, you likely understand that an important decision must be made. You may need to decide whether or not a trial by judge or a jury trial would be in your best interests. Perhaps the court has just set your case for trial. By default, the type of trial that you’ll get is a bench trial (i.e. trial where the judge makes all of the final jury decisions). Maybe instead of the court setting your case for trial, you or the other party has requested a trial date. Again, by default, the type of trial that you’ll get is a bench trial. If you want to have a jury trial, on the other hand, there are some specific steps that you must first take. So, before you go and decide that a jury trial is better for you and your case, be sure that you are armed with the knowledge of what a jury can decide so that you can assess the evidence that you have against the evidence of the other party. In fact, the Texas Family Code identifies several elements and issues of a divorce and/or custody case that can be tried before a jury; the verdict won’t be overturned by the court, either. There are 5 jury Decisions most commonly make in Texas. Texas is special in that way. Here, we will discuss those 5 decisions so that you can make an informed decision on your own.

Decision # 1: Juries Can Decide the Status of Your Marriage.

Have a concern about a common law marriage? Since Texas acknowledges common law marriages, whether or not a person is actually married may not have a straight-forward answer. Juries can hear testimony regarding evidence concerning the existence or non-existence of a common law marriage.

Imagine the Following Scenario:

Peter and Leah have lived together in Texas for 11 years. For the last year, Leah and Peter have been having huge disagreements and arguments over the household finances. Two months ago, Peter moved out. Leah now files for divorce in Texas on the theory of common law marriage and asks for half of Peter’s retirement account and more than 50 % of their community property estate. Peter denies that they were ever common law married and therefore he should not have to split any assets with Leah. Peter swears that they don’t meet one of the requirements of common law marriage because he has never held Leah out to be his wife. Leah only has the evidence of some bills that came to their home in both of their names to prove the “living together” requirement for common law marriage. Peter has tax returns for the past 6 years that show that he and Leah have always filed ‘Single’ on their tax returns. Peter also has a video from his birthday party from last year in which Leah is shown in the video giving a toast to the best “boyfriend” she has ever had in front of all of the couple’s friends. Here, a jury would be able to weigh all of the evidence and decide whether or not any marriage existed between Leah and Peter. That would determine whether or not any assets would be divided.

When parties decide to get divorced, the grounds for divorce will need to be decided. Will the parties be divorced due to supportability (i.e. no-fault divorce)? What about abandonment? A Texas jury could make that decision regarding the status of a marriage. For example, if the jury believes that fraud was committed in order to induce marriage, the jury could declare a marriage void and annul a marriage. Annulment is different from getting divorced as the annulment is like erasing the marriage. It is like it never happened. A divorce does not erase a marriage, though it dissolves it. If you have evidence that your spouse is at fault for your divorce, you may want an impartial jury to make a decision regarding your marital status.

Decision # 2: Juries Can Decide Who Gets Custody

If you are going through a divorce and you have children or if you are involved in a child custody case, then you know that this is perhaps the most important jury decisions that the jury has the ability to make. Texas is the only state that allows juries to give verdicts that decide the custody of children. According to the Texas Family Code, a Texas jury can decide if a party will be appointed sole managing conservator and which parent will have the right to establish the primary residence of the kid (i.e. who has “custody” of the child.)

Decision # 3: The Jury Can Decision Where the Child Will Live.

At the conclusion of a family law case, it is quite common for there to be a geographic restriction on where the child can and cannot live. The jury can hear evidence from both parties and decide whether or not it is in the child’s best interest to have a geographic restriction and if so, to what area should that be confined to.

Decision # 4: Juries Can Decide on the Status of Property.

Have any separate property claims? You better be sure that your attorney is great at presenting expert evidence and testimony if necessary. A party must prove that property is their separate property with “clear and convincing evidence” or that property could be considered to be community property. Community property is divided between the spouses while a separate property isn’t.  A jury can hear expert testimony and decide whether or not your property is considered to be separate property or community property.

Decision # 5: The Jury Can Decide How Much Your Property is Worth.

Perhaps you and your spouse cannot agree on the value of your home. Let’s imagine that the County’s appraisal district has one value for your home, you have an even higher value based on work that you have put into the home, and your spouse has a much lower value that he/she got from a hired appraiser. A jury can review evidence and then make a final determination as to the value of your assets and other personal items.

Other causes of action/claims

In a divorce, spouses can sue each other for “torts” committed during the marriage. This could be fraud, breach of fiduciary duty, assault, and a wide variety of other claims, including claims under the Family Code such as reimbursement claims. A jury can decide if a spouse is liable to the other spouse or if a marital estate is liable to the other estate.

Juries Can’t Make Decisions Regarding :

  • Adoption of a child;
  • Enforcement of a Prior Order;
  • Visitation;
  • Child support; or
  • Property division.

These decisions will be made by the judge. 


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