Wednesday, December 6, 2006

Case Law Development: Jury Trial in Divorce Actions

In most states, there is no right to a jury trial in dissolution actions.  Only eleven states allow juries in any aspect of divorce litigation (Colorado, Georgia, Illinois, Louisiana, Maine, Nevada, New York, North Carolina, Tennessee, Texas and Wisconsin).  Most of these limit the right to a jury to try issues regarding grounds or entitlement for divorce only.   Texas provides jury trial rights most broadly, including even the right to a jury trial on questions regarding child custody. (For citations, see the annotation on the subject at 56 A.L.R.4th 955).

Accordingly, cases discussing evidentiary issues in divorce actions are a rarity. A recent Georgia Supreme Court decision demonstrates that, few evidentiary errors will be likely to be sufficiently egregious to rise above the harmless error standard. Husband had alleged numerous evidentiary errors in the divorce action, including, for example, allowing cross examination regarding husband's opinion as to fair alimony and property division, admitting an improperly authenticated document, and allowing witness testimony impeaching the testimony of the husband's lover before the lover testified. As to each, the supreme court found the error harmless.  The court also rejected husband's appeal of the denial of a mistrial based on improper closing arguments due to a failure to object during that argument. 

Moxley v. Moxley, 2006 Ga. LEXIS 987 (November 28, 2006)
Opinion on web  (last visited December 4, 2006 bgf)

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In Pennsylvania there is no trial by jury in matters of divorce or child custody. In a
prsentation to a Master there results are already predetermined. That was my experience.
It was also the experience of many men I have networked with. In short prejudice. The Courts
also like a litigant that can not afford an attorney. The Masters and Judges take full
advantage. This means that you can only practice and apply the law one way. All other applicable laws and evidence will be ignored. The Master and the Judge is also the jury.
The also enforce their judgements. The culture of the court wins. This includes bias in the
favor of women. In the case of earning capacity. There is clearly bias and surpression of the facts and no method at all in the determination of a figure. A theoretical salary for a theoretical salary, that does not exist. Clearly a violation of the US Constitution. Eg.,poor people will be dealt with harshly and brutily. The predetermined sentence will be jail. Many Masters and Judges should be impeached by what ever legal means available.

Posted by: Joe Dice. | Jun 22, 2009 2:21:05 PM

This article is incorrect- Pennsyvnia allows jury trials for divorce issues.23 Pa.C.S.A. ยง 3322. Jury trial

Posted by: Diane | Aug 11, 2010 4:15:26 PM

While I agree that the law in Indiana does not provide for a jury trial in a divorce case, how does that reconcile with the Indiana Constitution, Article 1 of the Bill of Rights, section 20, which states, "In all civil cases, the right of trial by jury shall remain inviolate." It is, after all, a civil case. Has that part of the Indiana Bill of Rights been changed? I have a client arguing this with me as I have told him there is no jury trial available.

Posted by: Lisa Wojihoski | Nov 7, 2016 4:55:50 AM

Not true in Colorado. Colorado's Dissolution of Marriage Act provides that "All issues raised by these proceedings shall be resolved by the court sitting without a jury." Section 14-10-107(6), Colorado Revised Statutes. Recent case law is in agreement: "All issues raised or presented in a dissolution proceeding are to be resolved by the court in equity sitting without a jury." In re Marriage of Lewis, 66 P.3d 204, 205 (Colo. App. 2003).

Posted by: ohwilleke | May 6, 2020 1:03:00 PM

FRCP 38 trial by jury cannot be denied when requested by a man or woman.

Posted by: Curt McPherson | Jun 6, 2023 11:08:13 AM

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