What, No Jury Trials in Divorce Court?
You don’t need to be a lawyer to know the US Constitutions provides you the right to a jury of your peers. But, did you know divorce court doesn’t allow for a jury?
In Clark County Family Courts, which is the court for divorces in Las Vegas, the judge shall determine all questions of law and fact arising in any divorce proceedings. In other words, there are no jury trials in Las Vegas divorce courts.
This can be distressing for those hoping to explain their case to a jury instead of a judge. Judges can be cold, and stoic. They have been desensitized and don’t typically care about the emotional aspects of a divorce. Juries are made of regular people. People who are interested in why she cheated on you, or how he never helps the kids with homework, or how he is verbally abusive. A jury would be your best opportunity to show what a really awful person your soon-to-be ex is. But, that day will never come. Under Nevada law juries are not an option in divorce court.
Only a few states allow for any type of jury trial in a divorce case. Even then, those states limit the issues that can go before a jury. For example, Texas, which has the most liberal rules concerning jury trials in divorce cases, is the only state that allows juries to decide which parent gets custody of the children and where the children will live. But, only a judge can decide issues of visitation and child support. Texas also allows juries to decide whether property is separate or marital whenever there is a dispute. But, the judge is the one who decides how the marital property will be divided.
The determination of whether or not a type of case can be decided by a jury, or a judge in what is called a “bench” or “court” trial, turns on the nature of the case and the remedies that are available. From the early days of U.S. law, there were two courts: courts of law and courts of equity. This system was basically copied from England’s original court system.
Courts of law required whether by way of a judge or jury, to abide strictly by the parameters of established law. Courts of equity allow a court to fashion a fair, equal and just remedy. Courts of law relied on juries. Courts of equity relied on judges and didn’t have juries.
A criminal charge is an example of an issue heard in a court of law. The law requires proof the legal elements have been met. Juries listen to the evidence. The jury decides if the defendant violated established laws.
Equitable claims are when non-monetary or non-punitive remedies are requested. Like protective orders, injunctions, specific performance of a contract, or issues involved in the dissolution of a marriage. The judge listens to the evidence and makes all final decisions.
Our current court system is no longer divided into a court of law or court of equity. Today’s courts are divided into specific areas of law. Yet, traditions from the old system still linger. Divorce court kept more with the traditions of an equity court and doesn’t allow a jury. Although the divorce court could hear issues of law more decisions are based on fairness or equity.
Are you wondering what happened to the Bill of Rights and your right to a jury? The US Supreme Court has decided the right to a jury was only intended for a criminal charges which carry with it significant fines or jail time. Any other legal proceeding is left to the states to decide when to use a jury and when to use a judge.
Some legal experts believe the divorcing parties should be able to opt for a jury trial. They feel it would make the process fairer and avoid any potential bias of the judge. An alternate view is the parties would have an incentive to settle their issues without court interference if they knew the alternative was to share their personal information in public to a jury. The jury is still out on which view is right.