An issuable defense is the first of the two things a Georgia divorce needs before a jury is available. A written demand cannot substitute for it.
Both Conditions, Not Either One
OCGA 19-5-1(a) gives the judge all the issues of law and fact “[u]nless an issuable defense is filed as provided by law and a jury trial is demanded in writing by either party on or before the call of the case for trial.”
That “and” was deliberate. Flournoy v. Flournoy, 228 Ga. 224 (1971), notes that a 1960 amendment to the predecessor statute replaced “or” with “and,” so meeting one condition is no longer enough.
No Issuable Defense, No Jury
Flournoy shows what that means. A spouse who wanted a jury filed a demand, but no defense to the divorce had been raised. The Georgia Supreme Court affirmed, holding that “no issuable defense having been filed, the trial court did not err in … refusing the appellant plaintiff’s demand for a jury trial.”
A jury demand does not create the right on its own. Something has to actually be in dispute.
Once It Exists, Your Spouse Cannot Take It Away
In Trulove v. Trulove, 233 Ga. 896 (1975), a wife answered her husband’s divorce complaint, counterclaimed on the ground of cruel treatment, and demanded a jury. The husband then dismissed his own complaint, obtained a Nevada divorce decree, and moved to strike her jury demand, arguing nothing was left to try.
The Supreme Court reversed. Her counterclaim was still pending, and her challenge to the Nevada decree raised whether her husband had really been domiciled there. Domicile, the Court noted, “is ordinarily one for a jury.” It held that “the statutory requirements for jury trial are satisfied” and that the trial court “erred in ordering it to be tried without a jury.”
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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!