A jury in a divorce case? Yes, in Georgia

Supporters say it helps thwart judges’ bias.Cost, desire for privacy make it a rare choice; only Texas also allows it.

By Peralte C. Paul
The Atlanta Journal-Constitution
07/03/2009

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The road to wedded bliss usually ends in the couple declaring their undying love before a judge or, in a religious setting, a man or woman of the cloth.

In Georgia, the exit ramp to Splitsville brings the now-not-so-happy couple before a judge, too. However, a quirky but little-used right of divorce law in the Peach State allows for a jury of 12 strangers to help decide most aspects of the case.

In fact, Georgia and Texas are the only states where couples seeking to dissolve a marriage have the right to divorce by jury. (New York juries can’t try such cases but can be called to decide if couples meet the state criteria for divorce.)

A lot more common in the 1970s when Georgia judges were prone to giving lifetime alimony in divorce cases which the paying ex-spouse usually would contest it’s a rare occurrence now. They’re also more expensive because preparing for a jury requires a lot more prep work and support materials used to explain various concepts to them that lawyers don’t need to do when arguing a divorce case solely before a judge.

“It is time-consuming and expensive,” said Stephen A. Land, an Atlanta attorney and former Fulton County assistant district attorney. “Most lawyers charge from $300 to $600 an hour. A jury trial could add two extra days and at seven hours a day, two extra days of trial is $5,000.”

There’s also court costs, which include paying jurors for their time.

But despite periodic attempts to scrap it from the Georgia code including as recently as 2007 those initiatives have always failed because attorneys say it’s a valuable tool in their arsenal of legal strategies.

So it’s not likely to go away anytime soon, lawyers say, because they and their battling clients have an advantage in keeping that right though it’s often used only as a last resort.

“I really think the jury trial is a basic right for all litigants, and it helps ensure fairness and the right to have the community help when spouses just cannot do it themselves,” said Randall M. Kessler, a family law attorney and founding partner of Kessler, Schwarz & Solomiany in Atlanta.

“It is also perhaps the very best way to ensure that people try their best to settle out of court, since a jury trial is always a risk, for both sides, no matter what the facts are.”

Plus, couples aren’t keen on having details of their private lives displayed before a dozen strangers.

“I’ve had more than one juror on a divorce case say to me afterward, that they would rather die than have that paraded in front of everybody,” Land said.

Kessler recounted a recent case where his client and her prominent doctor husband couldn’t come to an acceptable settlement agreement going back and forth for a year. Kessler’s client asked for a jury trial.

But the day before the trial was to start, Kessler said the husband and his attorney wanted to settle.

“The judge let us stay in the courthouse, and we were there until 3:30 a.m.,” Kessler said. “I think it hit him that everything he expressed to the world was not the side the jury was going to see.”

Still, some, like Terry Thorp of Roswell, believe that a jury of 12 yields a more just result than going up before a judge alone.

Thorp, who owns a drywall and installation business in Woodstock, said he tried to settle with his wife of five years, but the two could not come to an acceptable agreement. They went before a mediator still no solution.

He opted for a jury trial following a preliminary hearing where he was ordered to pay temporary alimony. Thorp said he decided that because he didn’t believe he was given a full chance to tell his side of the story.

“To give everybody a fair chance, you need to have a trial,” said Thorp, who received his divorce in 2005. “If you go before a judge and the judge has certain pet peeves and you do something they don’t like, you never know. It’s very difficult to let one person make a decision over your life.”

Georgia divorce juries can decide alimony, child support and distribution of assets and debt. Custody of the children, though, is only determined by the judge. Texas has the reverse with juries deciding custody and visitation rights, and the judge determining the division of assets. Texas juries also can hear cases where one parent seeks to terminate the parental rights of another or if a one is trying to prove paternity.

Though the laws differs in both states on what juries can decide, lawyers cite the same benefit: They can serve as a hedge against bias from the bench.

“You might have a rogue judge who has a reputation for not awarding much alimony,” Kessler said.

Lawyers add that because Georgia also is a solid Bible Belt state, certain divorce triggers, such as infidelity, might not resonate as much with a judge whose heard hundreds of cases, but might with a couple of jurors who might find adultery morally reprehensible. Conversely, it might bring sympathy from a juror for the cheating spouse if the juror has done the same thing.

“It can be used as a safeguard rather than having one person making a decision about it,” said Wilbur Warner an Atlanta divorce attorney and partner in Warner, Mayoue, Bates & Nolen. “With a jury, at least, it’s a composite of the baggage and issues and it’s not one person deciding.”

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