Even when a Georgia divorce is tried to a jury, the jury does not decide everything in the case.
Custody Is Never a Jury Question
OCGA 19-9-3(a)(2) is explicit: “The judge hearing the issue of custody shall make a determination of custody of a child and such matter shall not be decided by a jury.” The statute directs the judge “to exercise discretion to look to and determine solely what is for the best interest of the child.” So if you have children, part of your divorce is decided by the judge even when a jury is hearing the rest of it.
Agreements Between Spouses Are for the Judge
Whether a prenuptial agreement will be enforced is also the judge’s call. In Scherer v. Scherer, 249 Ga. 635 (1982), the Georgia Supreme Court held that “the trial judge should employ basically three criteria” in deciding whether to enforce an antenuptial agreement made in contemplation of divorce: whether it was obtained through fraud, duress, mistake, misrepresentation or nondisclosure; whether it is unconscionable; and whether circumstances have changed since it was signed so as to make enforcement unfair.
Curry v. Curry, 260 Ga. 302 (1990), applied the same rule to a reconciliation agreement. The wife argued that the trial court’s findings had resolved several jury issues. The Court disagreed, holding that “Scherer specifies that the trial judge shall determine whether or not to enforce the agreement.”
What Is Left for the Jury
That leaves the jury with the divorce itself – whether either spouse is entitled to one and on what ground – along with alimony and the equitable division of the marital property and debts. Those are the issues a jury verdict in a Georgia divorce actually resolves.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!