Can I Demand a Jury? Should I?

In Child Custody, Child Support, Domestic Violence, Separation & Divorce by Sarah Hink

For people who have never been involved in a lawsuit, it is easy to imagine what a trial is like: twelve skeptical jurors staring at you as an attorney picks apart your testimony. This is probably the result of watching the O.J. Simpson trial, or years of Law and Order marathons. The reality is that jury trials in North Carolina are relatively rare occurrences. In fact, there are limits as to what kind of cases are subject to jury demands.

Matters that Allow for Jury Demands

Jury trials are not available when seeking a domestic violence protective order (DVPO), child custody, child support, or division of marital property. Generally, a jury trial is only permitted in North Carolina cases where it is provided for by the Constitution or by statute. In the area of family law, the North Carolina General Statutes provide for jury trials in the following types of cases:

A divorce or annulment proceeding. Specifically, the statute allows for a jury in an absolute divorce, a divorce from bed and board, or an annulment. In an absolute divorce, the jury is essentially resolving a dispute as to whether the couple was separated for a year—which could have great bearing on your property division, alimony, and child support determinations.

An annulment is a proceeding to void a marriage, but the circumstances that allow for annulment are incredibly limited (i.e. incest or bigamy). While allowed, a jury trial for an annulment is incredibly rare.

Alimony, on the issue of marital misconduct. A jury trial is available solely for the purpose of determining whether either spouse has committed marital misconduct, which includes acts of: (1) “illicit sexual behavior”; (2) a criminal act that caused the separation; (3) abandonment; (4) maliciously ejecting the other spouse from the home; (5) cruel or barbarous treatment that endangered the other spouse’s life; (6) “indignities” that were intolerable and burdensome to the other spouse; (7) the waste, diversion, or destruction of marital assets; (8) substance abuse; or (9) the “[w]illful failure to provide necessary subsistence according to one’s means and condition so as to render the condition of the other spouse intolerable and life burdensome.” Post separation misconduct may also be used to corroborate pre-separation marital misconduct.

Significantly, while a jury can make findings as to the marital misconduct, it is still up to the judge to decide the amount and duration of the alimony payments based on the overall alimony factors.

Should I Request a Jury?

The logical next question is whether you should request a jury trial. The answer really is a personal one based on your circumstances and goals; however, keep the following in mind:

  • It takes court longer to reach jury trial settings due to heavy court dockets, limited jury docket availability, and the process of summoning jurors.
  • Jury trials can take longer to try, since juries may need more education and background information from witnesses than a judge who is well versed in the subject matter. In addition, the jury selection and jury deliberation processes can add days to trial.
  • For the aforementioned reasons, jury trials can cost significantly more money than bench trials. This means weighing the additional costs versus the potential benefit of a jury trial.

If you are involved in a separation or divorce, you should contact an attorney. The attorneys at New Direction Family Law represents clients in obtaining protective orders, child custody orders, separations, and divorces. We will conduct a thorough look into you circumstances and review your options so that you can make a fully informed decision. Let us help you. We serve Wake, Johnston, Lee, Harnett, Cumberland, Nash, Granville, Franklin, and Durham counties. Call us today at (919) 719-3470 to schedule an appointment or reach us online at our website.

Sarah J. Hink
New Direction Family Law

New Direction Family Law
(919) 719-3470