The Walters Gilbreath, PLLC Blog

Jury or Judge: Which is Better for You?

by Brian Walters on June 6, 2017

If you are reading this, you are likely in the midst of your family law case. Maybe you are going through a complicated divorce or perhaps you are suing to keep or change custody and/or support. Maybe your case involved Parental Alienation Syndrome. No matter the type of case, you may come to a point where you must decide whether or not you should elect to have a jury or if you’d like for a judge to decide on the remaining issues in the case.

This article discusses both options and answers questions like:

  • When should you choose to have a jury?
  • When is it more beneficial to have a custody or divorce jury trial?
  • What are the pros and cons of each?

You have an important decision to make and deciding this is one of the very first steps. So what will it be, jury or judge?

What is a Bench Trial?

Judge or jury

In short, a Bench Trial is when the Judge decides the case; a jury won’t even be present. In Texas most civil trials are trial by judge, unless a party specifically requests a jury instead.

This means that for a Texas family law case, the trial will be decided by the Judge as a default. Parties are entitled to have a bench trial or a jury trial (if all of the prerequisites are met).

Additionally, if you have a trial by judge:

  • Allow the judge to act as the finder of fact and make conclusions of law;
  • Are typically shorter/take less time;
  • Do not have to be “paid for” prior to trial being set;
  • Cost substantially less; and
  • Allow the judge to decide on any issue that a jury can decide, but the judge has exclusive power over certain matters; in other words, a jury cannot decide every single issue; only the judge can make a decision regarding adoption, paternity, enforcing court orders, visitation, and child support.

Q: How Do You Decide Whether or Not the Judge or Jury Trial is the Better Option?

A: If your answer is ‘no’ to any of the following questions, a bench trial is likely the better option:

  • Does your case involve complicated issues such as international child abduction, dividing a business, etc.?
  • Did you and your spouse ever have Temporary Orders?
  • Can a lay jury understand the complicated issues, defenses, and other evidence presented? If the outcome of your case depends on a legal question, a judge may be the better choice.
  • Do you want to have a lengthy trial?
  • Do you have enough money saved or otherwise available to fund it? (i.e. court costs, attorney fees, etc.)
  • Do you have an attorney? You should be sure to hire an attorney if you choose to have a jury trial.

Q: What is a Jury Trial?

A: It is a trial in which a jury is selected through a process called, “voire dire”. There are several elements of your family law case that a jury can decide so your attorney will get the opportunity to address the jury. Additionally, if you have a trial by jury :

  • Enable your attorney to tell your side of the story to the jury; your attorney will want to tell your side of the story with conviction, detail, and should make the jury trust you (and the attorney) so that you will get the desired verdict;
  • Must be “paid for” prior to being assigned a trial date; proper notice to all parties is also required;
  • Allow the jury to decide on the status of a marriage in divorce cases. This means that the jury can make the choice to change your status from “married” to “divorced” and can decide whether or not a couple is “common law” married in Texas;
  • Allow the jury to decide on the grounds for divorce, especially if either or both parties have claimed anything other than insupportability (i.e. no fault);
  • Allow the jury to decide on pre and post-marital agreements and whether or not the agreement is enforceable;
  • Require that the requesting party make a jury demand, serve it on all parties, within a reasonable time before trial (but no less than 30 days of notice), and pay the fee (typically $40);
  • Typically cost at least twice as much as if you choose to have a bench trial;
  • Texas is one of the very few states that allow the jury to decide on custody matters, geographic restrictions for the child(ren), and what parent should designate the residence of the child(ren); and
  • Allows the jury to determine whether property is community property or separate property, value the property, and decide on the division of property.

If Your Answer is ‘Yes’ to Any of the Following Questions, a Jury Trial is Likely the Better Option:

  • Can you relate to a jury? Better yet, could a jury relate to you?
  • Are you comfortable testifying in the presence of other people?
  • Does your case have “sympathetic facts”?
  • Do you think that a jury of your peers would agree with your stance on the case?
  • Is your attorney experienced in trying Texas jury trials to a verdict?
  • Has your attorney successfully tried at least 5 jury trials in Texas to a verdict? If not, you should seek an attorney with experience with trying jury trials to a verdict.
  • Do you have enough money saved or available to fund the jury trial?


Deciding on whether or not you want to have a divorce or custody jury trial or a trial by judge, on the outstanding issues in your case is a big decision. It could impact not just your finances; this choice could impact the outcome of your case. Beware of the inexperienced attorney, choose wisely.

Topics: jury trial