Can I Get a Jury Trial for My North Carolina Divorce?

“Can I get a jury trial for my North Carolina divorce?” That question comes up frequently and it’s especially common when one party doesn’t trust the assigned judge. One party might feel that a jury would be fair when a judge might not appreciate the situation.

But jury trials aren’t common in North Carolina divorces. They’re the exception, not the rule. They’re limited to very special circumstances in family law cases.

Jane filed for child support for her two children. Her ex, Bill, alleges she earns more income than she says she does.  Bill wants a jury to hear his evidence about Jane’s income. Is this possible?

Sometimes, but not this time

Child support matters are only heard by a judge; after hearing the evidence from both sides, the judge determines the child support obligation according to the North Carolina Child Support Guidelines.

What’s a jury trial?  Let’s clear that up

Before we embark on the discussion of jury trials in divorce and divorce related cases, let’s briefly define a “jury trial”.  In North Carolina, cases may be decided by a jury or a judge dependent upon what type of case is being tried (e.g. a personal injury case, or a child custody dispute).  A trial before a judge is often referred to as a “bench trial”. A jury trial is heard in front of a jury composed of twelve individuals. In a bench trial the judge is the sole decision maker. In a jury trial the twelve jurors have the decision-making power.

Upon a case being called for a jury trial, both the plaintiff’s and defendant’s attorneys participate in the selection of twelve jurors. Each attorney is allowed to question jurors to uncover any potential bias. Each attorney is allowed to remove a certain number of jurors “for cause” from the panel. The judge oversees the jury selection process and is the ultimate decision maker in removing additional jurors after the attorneys have exhausted the “for cause” removals. Any juror may be removed by the judge if there is a clear bias on the part of the juror.

Pros and Cons of a Jury Trial


  • Twelve people hear your claim as opposed to just one judge
  • Jurors can often be persuaded by emotions which can result in higher monetary awards for the innocent party
  • The threat of “dirty laundry” being exposed in courtroom full of jurors and others could result in a party settling for a higher award out of court before the case is called for trial


  • Increased costs of your case
  • The time it takes your case to be resolved could be greatly increased as it typically takes several months to have a jury trial heard
  • Jurors typically have no knowledge of the law which may result in them being persuaded by emotions which could not be in your favor if you are the party at fault

Jury trials are NOT allowed in these cases

  • Child Custody
  • Child Support
  • Equitable Distribution (Dividing Property)
  • Alimony (With The Exception of a determination of “fault” as discussed below)
  • Domestic Violence

Why can’t I have a jury?

The North Carolina legislature determines which cases are eligible for jury trials.  There are many public policy reasons to require the above cases to be heard before a judge and not a jury.

Just to name a few:

1.   The sheer volume of family law cases would clog the court system if every case could be heard by a jury.
2.  Many of the above types of cases are time sensitive. For example, child custody cases need to be resolved in an expeditious manner as young children need stability and waiting several months for a jury trial is just not realistic.
3. These types of cases have monetary components that typically need to be addressed almost immediately such as child support and medical expenses.
4.  In domestic violence matters, a person’s physical safety is often at stake and orders need to be issued immediately not several months down the line in front of a jury.

But, a family law jury trial IS permitted in these cases: 

  • Absolute Divorce
  • Divorce From Bed and Board
  • Annulment
  • Fault in Alimony Cases
  • Alienation of Affections
  • Criminal Conversation

As you can see, the types of cases that are heard before a jury in divorce and divorce related cases is very limited. And even in the cases listed above, it is still very rare to actually make it before a jury.

But, jury trials are rare even when permitted.

Most cases don’t go to trial. They get settled by agreement. This is due in large part to the multiple opportunities you have to settle your case before it ever makes it to the courtroom.

Mandatory mediation for many types of cases helps to facilitate settlement. Even if mediation is not mandatory most parties tend to engage in some form of alternative dispute resolution before trial, as it is far less expensive than preparing for and conducting a trial.

Even if parties do not engage in formal mediation, it is still very common to attempt to resolve the matter through attorney led negotiation as opposed to trying the case before a jury.

Another benefit to settlement is that both parties can avoid discussing the often-embarrassing facts of their case in front of an audience of twelve jurors and whoever else may be sitting in the courtroom.

Settlement is a great idea in theory, but some cases are just destined to end up in the courtroom. If yours is one of them, you may be wondering if a jury trial is an option. Let’s walk through each of type of case related to divorce, where parties are permitted to request a jury trial.

Lets drill down into each type of case for which jury trials are an option

Absolute Divorce

Obtaining a divorce in North Carolina is not a complex legal process. In North Carolina the most common ground to file for divorce is being separated for one year. Almost all complaints for divorce are filed based on the ground of separation for one year.  The other ground to file for divorce, incurable insanity, is almost never used as the basis for a divorce.

If a jury trial is requested in a divorce case based on separation for one year, the jury would determine if the parties have actually been separated for one year under the eyes of the law.

The key question for the jury will be does either party meet the requirements for separation.

Parties often tend to believe leading separate lives, and sleeping in separate bedrooms, is enough to be separated; however, North Carolina defines “separation” as living physically separate and apart with the intent of at least one party to be separated from the marriage. So if one spouse files for divorce based on the idea that they have been sleeping in separate bedrooms for a year, the other spouse may object.  The party may at that time request a jury or bench trial on the issue.

The date of separation is important for many reasons as it relates to equitable distribution, child support, and alimony. The date is critical to establish when property will be valued in equitable distribution, and when child support and alimony would commence for the paying spouse. If there is a major disagreement over the date of separation a party may believe he or she will achieve a more favorable result with a jury deciding the date as opposed to the judge.

Another instance in which the date of separation could be a critical date, and worth contesting in your divorce case, relates to alienation of affection and criminal conversation cases. The date of separation really can make or break an alienation of affection or criminal conversation claim.

For the claims of alienation of affection and criminal conversation, the acts that are the underlying foundation of the claims must occur before the date of separation. For example, for a criminal conversation claim the illicit sex act between the third party and the guilty spouse must occur before the date of separation. Sexual acts after the date of separation, are not the basis for the criminal conversation claim, and evidence of post-date of separation sexual activity can only used to corroborate pre-separation acts.

As you can imagine, the date of separation can be a big deal in these cases. For that reason, a spouse may determine he or she would prefer a jury of twelve people to hear the facts and determine the date of separation as opposed to one judge, but the costs and benefits a jury trial should always be considered.

A jury trial increases the cost of your case due to the often lengthy jury selection process as well as the fact it just takes longer when you add twelve more people into the mix.

You have to factor in the breaks the jurors are allowed as well as any motions that may have to be argued outside of the presence of the jury.

All these factors increase the time required to conduct a jury trial which increase the costs of your case. It is important to weigh all the factors to make sure a jury trial is right for your case.

Incurable insanity is almost never the basis for a divorce action.  Most attorneys have never participated in a trial, jury or bench, where incurable insanity was the basis for the divorce action.  If a jury trial was requested the requirements to prove incurable insanity are listed in North Carolina General Statute § 50-5.1.

Divorce from Bed and Board

A divorce from bed and board is a judicial decree of separation based on fault. There are several grounds on which a party may file a claim for divorce from bed and board. The grounds are listed in North Carolina General Statute § 50-7.

A few examples of grounds for divorce from bed and board are abandonment and maliciously turning the other out of doors.  This cause of action has very limited utility in North Carolina as the court can issue orders of child support, child custody, equitable distribution and alimony without a decree of divorce from bed and board.

Upon one or more of the grounds for divorce from bed and board  being proven by the injured party a judge or jury could enter a decree of divorce from bed and board.

The main reason a party would pursue a divorce from bed and board is to eject a spouse from the home. If this is the remedy a party desires, it would be a much quicker route to request a hearing before the judge as opposed to a jury as jury trials can often take months to be heard.

Further, it is not entirely clear that the judge or jury would have the authority to temporarily eject one spouse from the marital home.

The authority to eject a spouse from the home is not provided by statute based solely on a decree of divorce from bed and board, but by a court utilizing its equitable powers or ejecting the spouse based on other statutes such as North Carolina General Statutes § 50-13.4(e) and 50-16.7(a).

The court can also award temporary possession of the marital residence pursuant to the domestic violence statute, North Carolina General Statute § 50B-3(a)(2). A jury trial on this cause of action would most likely take more time and expense than would ultimately be worth it.

One spouse cannot disinherit another spouse in the State of North Carolina by simply eliminating the spouse from the will.

Even if one spouse leaves the other out of the will, the disinherited spouse would have options to share in the deceased spouse’s estate or to inherit from the spouse if he or she died without will. These estate rights are enumerated in North Carolina General Statute § 31A-1.

One common issue that comes up after parties separate is one spouse will not sign a separation agreement addressing estate rights-what recourse does the other spouse have?

If one party, the plaintiff, has the grounds to file a complaint for divorce from bed and board and is successful, then the defendant would lose the above mentioned estate rights.

Practically speaking there will always be some time period where estate rights are in limbo either because no separation agreement is signed or there are no grounds for a divorce from bed and board.

By the time a jury was able to hear the action for divorce from bed and board, it may very well be close to the time when a party could file for divorce.

A party’s will may be changed at any time to disinherit a spouse upon a judgment of absolute divorce being entered.  Thus, the issue is all in timing and the reality is in most divorce cases, either the parties get divorced or enter into a separation agreement related to estate rights.


An annulment, unlike a divorce, treats a marriage as if it never existed.

The grounds for obtaining an annulment in North Carolina are very limited.

Examples of grounds for annulment would be incest or impotence. Rarely are annulments granted in North Carolina because the grounds to obtain one are so limited. Simply having “buyer’s remorse” and wanting to get out of the marriage is not grounds for annulment in North Carolina.

A jury trial may be requested in a Complaint for annulment. The discussion of private matters related to marriage in front of jurors and the people in the courtroom is embarrassing and invasive to one’s personal life.

An annulment proceeding would be no different. However, declaring a marriage void and as if it never existed is a serious ruling and a party may feel that a jury of twelve is a more impartial way to have the matter decided.

The particular facts of each case would need to be evaluated to determine whether a bench trial or jury trial would be the better option.

Alimony cases

Alimony is a monetary sum that the supporting spouse would pay to a dependent spouse each month, or in a lump sum, to contribute to the dependent spouse’s needs and expenses.

The supporting spouse is the primary breadwinner and the dependent spouse is the party in need of support.  Often a stay at home mom or dad or a spouse that earns significantly less is classified as a dependent spouse.

A party can request a jury trial on the issue of fault in an alimony case.  This is the only issue that may be heard by a jury.

All other issues must be decided by the judge. The jury finds facts as it relates to fault/marital misconduct but the jury does not decide how this fault/marital misconduct would impact the alimony award as the judge decides that issue.

A party may believe a jury would be more empathetic to claims of fault and find in his or her favor, or that the threat of a jury trial which would air “dirty laundry” would be such an embarrassment that one would be more inclined to settle for a higher award.

Fault certainly plays a role in alimony cases especially as a bargaining tool, but in reality the courts focus more on the dependent spouse’s needs, and the supporting spouse’s ability to pay.

If one spouse is at “fault”, he or she may not want the facts surrounding his or her actions aired in court thus the guilty party may be willing to settle for a higher award out of court.

If a dependent spouse commits illicit acts of sexual intercourse prior to the date of separation, and the supporting spouse commits no such acts, then the dependent spouse is barred from receiving alimony.

The decision on whether these illicit acts of sexual intercourse occurred would be critical to the alimony case which could motivate a party to seek a jury trial on this issue so twelve people would hear the evidence – not one judge.

The jury would only decide on the issue of marital misconduct as related to illicit acts of sexual intercourse. The jury does not decide on how illicit acts of sexual intercourse impacts the alimony award, the judge decides this issue.

Lastly, if the fault is the basis of the alienation of affection or criminal conversation, the guilty party may be willing to settle outside of court for a more favorable sum if the innocent party agrees to waive the right to sue the third party with whom the spouse engaged in the acts that constitute “fault.”   The court will also weigh other factors outlined in North Carolina General Statute 50-16.3A.

Alienation of Affection and Criminal Conversation

These two civil actions are alive and well in North Carolina despite the fact all but six states have abolished these causes of action.

Most often these causes of action are used as a bargaining tools in settlement negotiations. Rarely does a jury actually hear a case involving alienation of affection and criminal conversation.

Discussing relationships and sexual activity is a private matter for most – not something to be publicly addressed in a courtroom.

One potential advantage of a jury trial could be a jury that is swayed by emotions thereby resulting in a larger monetary award. It can be impactful to many people hearing how a family was destroyed by the acts of a third party and the guilty spouse.

However, in most of these cases the innocent spouse’s greatest asset is to use the threat of filing a lawsuit based on these claims as a bargaining tool to gain more financially for the innocent spouse.

Do you really want a jury?

Separation and divorce is without question one of the hardest events in any person’s life. Every family is different therefore each separation and divorce will be unique with its own set of facts and circumstances.

Knowing and understanding all your rights as it relates to the law is critical. Whether to pursue a jury trial in your case is no different. Explore all your options and make the choice that best suits the needs and goals of your case.

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