Do I Try My Family Law Case to a Jury or a Judge?
The civil practice act provides that the Superior Court judges in divorce cases may, on reasonable notice to the parties, any time, either in term or vacation, and in chambers, in any county in the circuit, hear and determine all matters in issue where a jury trial is not required or has been waived. OCGA 9-11-40 B. In divorce and alimony cases, a jury trial may be waived orally in open court, or in writing, or by failure to file an issuable defense and demand a jury trial.OCGA 19-5-1, McFarland v. McFarland 231 Ga. 739 (1974). Frequently, where there is an agreement as to all matters in issue, the parties will enter into an agreement or consent to trial, or by the consent of the case may be tried without a jury at any time after the appearance day. Consent of the parties must be signed by both parties and each signature witnessed by an official attesting officer or the party's counsel. The appearance day is 30 days after the date of service upon the defendant, regardless of when the agreement was executed or filed. The Georgia law provides that unless an issuable defense is filed and a jury trial demanded in writing by either party on or before the case is called for trial, and all petitions for divorce and permanent alimony, the trial judge sitting without a jury shall hear and determine all issues of law and fact raised by the pleadings. Since there is no judgment by default in divorce cases, an issuable defense may be filed at any time prior to the call the case for trial, whether by pleading, pretrial order, or otherwise, and the right of jury trial will be preserved. Where an issuable defense has been raised, and a jury trial is been demanded in writing and stands unrevoked, and absent waiver, it is reversible error for the trial judge to proceed without a jury. If an issuable defense has been filed, the trial judge in his discretion may order a jury trial in the absence of a timely jury demand. OCGA 9-11-39, Bullock v. Bullock, 234 Ga. 253 (2007). Although a jury trial must be demanded in writing, it may be withdrawn orally in Open Court, Smith v. Smith 228 Ga. 311 (1971). It may also be waived in writing or waived by agreement settling the issues between the parties, or by failing to appear at the time of trial. An oral announcement to the court by the parties that they reached an agreement as to the issues in a divorce case is sufficient to waive the right of jury trial, notwithstanding that one party may change his mind and refused to sign the agreement when reduced to writing. A demand for jury trial may be withdrawn at any time, with or without leave of court, and it has been held that there is no requirement that notice of such withdrawal be served upon the opposite party. Morgan v. Morgan 228 Ga. 763 (1972). Contact a Dallas Georgia divorce lawyer today for help in regards to your case.Posted By Georgia Family Law Attorney Categories: