Family law attorneys spend more time in court than probably any other lawyer in any other kind of law in a power state. This isn’t necessarily because every single temporary order situation or final order situation goes to court but because there is a myriad of ways that a family law case could need to have a judge settle an issue when the parties do not agree. The vast majority of Texas divorces and child custody cases settle rather than proceed to a trial.
However, that does not mean that your divorce or child custody case has no chance of going to court. Depending upon your circumstances it may be necessary for you to consider a trial if you and your spouse or Co-parent cannot agree to settle your case for whatever reason is in front of you. A typical child custody case involves issues regarding child support, child custody, visitation, access, possession, and conservatorships rights and duties. A divorce could take into consideration all of those subjects as well as issues regarding the division of Community property and debts. There is ample opportunity for you and your opposing party to find an issue that cannot be settled outside of court.
Once you get to the position where a trial becomes inevitable you next need to consider what sort of trial suits you and your case the best. Most Texas family law cases are heard in front of a judge. The judge will listen to the arguments that you and your opposing party make and consider the evidence that is Admitted. The evidence will be considered along with the necessary laws that are relevant to your case. A decision will be reached on whatever issues are outstanding in your case and the judge will read those decisions in court or will type something out and submit it into the file for you and your opposing party to read. The decisions of the judge will become the final orders in your divorce or child custody case.
The other option that may be up for consideration in your circumstances is what is known as a jury trial. a jury trial is a possible outcome that you are likely familiar with from either having served on a jury yourself or have seen depicted and movies or television shows. More often than not a judge would be the person who makes findings of fact and conclusions of law in your case. However, jury trials do exist in circumstances related to Texas family law cases. There are opportunities in the law for you to submit your case to a jury rather than a judge. That is what I would like to discuss in today’s blog post.
What are the family law cases that can go in front of a jury?
In a Texas family law case there is a range of general case types that can be heard either in front of a judge or in front of a jury. Those issues would be a division of your community estate, general issues related to your marriage, and finally issues related to your children. Broadly speaking these are the most frequently discussed and debated topics in Texas family law cases and you need to know that a jury can hear cases related to these subjects just as easily as a judge can. The question for you is to determine whether you would prefer these issues go before a judge or whether they go before a jury to be heard.
Probably the most important subject matter in a child custody case, whether it is a standalone custody case or is part of a divorce, would be whether or not you will be named as a sole managing conservator of your child, a possessory conservator, or a joint managing conservator. The vast majority of Texas divorce and child custody cases see parents named as joint managing conservator’s this means that you would share time in a somewhat equal fashion with your other parent and would need to be involved in decision-making with that parent when it comes to your child. However, in some cases, there may be circumstances in play that require consideration of a sole managing conservatorship where you would hold the predominant time with your child and hold predominant decision-making capabilities.
Make no mistake cover even a joint conservator of your child is in a position to be able to determine where your child’s primary residence is. The primary residence of your child is where he or she will live during the school year and spend most of their time during the year overall. This is probably the most highly sought-after conservatorships write available in Texas. You as a parent will simply have more time with your child if you can determine that your child lives with you during the school year. In addition to having your child live with you, you will also be in the driver’s seat as far as being able to make more decisions for your child than your Co-parent.
Connected to the issue of being named as the primary conservator of your child, issues regarding geographic restrictions can also be brought before a jury. A geographic restriction would mean that your child would be restricted from living anywhere but a certain geographic area specified in the final orders of your child custody or divorce case. Many times a geographic restriction looks like a child can reside in Harris or any contiguous County surrounding Harris County. Or, your geographic restriction may be more precise where your child can live only in a certain County or even in a certain school district. If you and your Co-parent are having issues surrounding a geographic restriction this is a subject matter that can be presented to a judge.
Another subject that is understandably contentious and stressful for parents to deal with would be the termination of parental rights. If you are in a situation where apart of child custody, divorce, or even a CPS case it is considered an option for the state to terminate your parental rights you may choose to have this issue presented in front of a jury rather than a judge. Keep this in mind as you may be better off having a jury of your peers consider whether or not you should have a relationship with your child moving forward. This is an extreme example of an issue that may be presented to a jury and is not one that is typically made a part of a divorce or child custody case.
What property division issues can go before a jury in Texas divorce cases?
As mentioned earlier in today’s blog post property division issues are central to most any divorce heard in Texas. Even if you don’t consider your community a state or separate Estates to be all that interesting or noteworthy there are still going to be basic property matters that need to get sorted out in your divorces such as ownership of your home, division of your community a state and consideration surrounding how debts are going to be divided up between you and your spouse. Foremost among these issues are topics surrounding Community property division.
The basis of this entire discussion is a determination of whether or not a particular piece of property or debt is a part of your community a state or part of your separate state. A jury may be tasked with making decisions regarding a piece of property or debt as far as whether it belongs in your community estate, your separate estate, or the separate estate belonging to your spouse. For example, if a home was purchased and it is unclear that the funds utilized to purchase the home were community or separate there may be some debate as to whether or not the home belongs in the community state or not. Both you and your spouse may need to present expert testimony for a jury to consider for them to answer this important question.
Another topic that can be of great importance especially in high net-worth divorces is the value of a specific piece of property. To consider how to divide up the community estate certain property items need to be valued to determine how much is in play as far as dollars and cents. Again, this may be an area where expert testimony is needed or an appraisal has to be submitted to a jury for them to determine how to divide the property instead of the other items in your community estate. Whether or not this is even an issue you would want to bring before a jury is another matter altogether.
Finally, an interesting topic that can be brought before a jury in Texas is a consideration of whether or not you and your spouse are even legally married. Most commonly this question is surrounded by the topic of common law marriage. In Texas, informal or common-law marriages are legal. To be in a common-law marriage three conditions need to be in place at the same time: you and your spouse need to agree to be married, you need to hold yourself out to the community as being married and you need to engage in activities that married people tend to do together. If all of these considerations are in place then you are likely common law married.
Common law married people need to get divorced just as people married the traditional way. If you find yourself in a spot where you believe you are involved in marriage but your spouse believed yours is a more casual relationship then you may want to pursue a divorce. As part of that divorce, the determination of whether or not you are even in a marriage needs to be explored. Rather than giving up on property rights and other relief has provided under divorce laws you may want to have a jury assess whether or not yours is even a valid marriage.
What are the issues that you cannot bring before a jury in Texas?
It may seem like, after reading the prior section of today’s blog post, that almost any topic can be brought before edging a jury in a Texas family law case. However, certain subjects must be brought before a judge rather than a jury in a Texas family law case. For instance, issues regarding child support cannot be decided by a jury. This means issues regarding the calculation of child support, determinations on net monthly income, or even the percentage of income that should go towards child support are not appropriate for a jury to consider.
Keep in mind that child support is a subject that can be very straightforward once determinations are made regarding net monthly income. Since this can be a rather mechanical exercise for most cases it probably isn’t a subject that you would want to bring before a jury anyways. Most of us don’t have dozens of sources of income and likely have less than two or three. The judge can utilize their experience in assessing your facts and circumstances more readily than a jury of your peers.
How Community property is divided is another subject that a jury cannot consider. This may be a little confusing considering how we just talked about how the jury can consider if she’s regarding property division. Allow me to be more specific. Kuala jury can consider whether or not a piece of property is part of your community a state or a separate piece of property a jury cannot consider how to divide up Community property. This is a little more complicated than it probably needs to be but the jury can consider certain issues regarding property, like valuing the property, but cannot participate in the actual division of that Community property.
Whether or not you are eligible to be paid post-divorce spousal support and the extent to which you can be paid that kind of support are also topics that are off-limits for a jury. Post-divorce spousal support comes in two forms: spousal maintenance and contractual alimony. The main difference between the two relates to how and when you agreed about the support that should be paid. Contractual alimony refers to payments made as a result of a mediation agreement. Special maintenance refers to payments that are ordered by injection.
Another interesting subject that cannot be brought before a jury is that of paternity. If you are in a situation where paternity is at issue for a child in your life then this is extremely important. Whether you are a father who is attempting to gain legal rights to the child or a mother two simply wants to be in a position where the child’s father needs to pay you to support you will need to bring this topic up to a judge rather than a jury.
Finally, if you are attempting to file an enforcement lawsuit then your case will need to go before a judge. That enforcement lawsuit involves a violation or perceived violation of a prior court order. Essentially, you are attempting to have a family court judge hold the opposing party to your prior case responsible for violating the terms of that order. Whether or not there is a violation in any subsequent punishments for having participated in a violation are subjects that can only be brought before a judge rather than a jury.
Closing thoughts on jury trials in Texas family law cases
the bottom line is that you are looking at a much different case when it comes to preparing for a jury trial rather than a bench trial in your family law case. Although the issues presented to both may be the same and the law of five by both may be the same the style that case is presented in as well as the factors inherent in the cases can be completely different. You will want to spend some time discussing the issues of your specific case with your attorney before making a decision. Determining which direction you should go in could play a pivotal role in your success moving forward.
With all of that said, you need to be looking for a family attorney who has experience presenting issues before a judge and a jury. When you are interviewing attorneys simply asking the attorney what sort of experience they have in trial scenarios is a good place to start. Although it is statistically unlikely that you will have to go before a jury or a judge in your divorce or child custody case there is a possibility of your having to do so. As a result, you will want to make sure that your attorney has the ability and wherewithal to take your case the distance if necessary.
If you have any questions about the material presented in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family may be impacted by the filing of a divorce or child custody case.