The Irretrievable Breakdown Ground for Divorce
By Joel R. Brandes, Bari Brandes Corbin and Evan B. Brandes
Domestic Relations Law §170 was amended to add “irretrievable breakdown” in subdivision 7 as a ”no-fault ground” for divorce. It provides that a husband or wife may be granted a judgment or divorce on the ground that: “(7) The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.”
In order to establish a cause of action and obtain a divorce under Domestic Relations Law §170 (7) the plaintiff must satisfy the residence requirements of Domestic Relations Law § 230, and, in addition, establish that: (1) the relationship between husband and wife is irretrievably broken; (2) for a period of at least six months; and (3) the plaintiff or defendant must state under oath that the relationship between husband and wife is irretrievably broken.
However, no judgment of divorce may be granted upon such a finding unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.
Where the parties to a contested action for a divorce have agreed that the divorce will be uncontested it has been the practice of New York courts to permit them to submit the matter to the court for determination upon affidavits and the required papers, or to hold an inquest on a fault ground. Where the papers were submitted, the court would reserve decision until the resolution of the ancillary issues. Where the court held an inquest, the court would grant a judgment of divorce, but hold the entry of the judgment in abeyance pending the resolution of the ancillary issues. The practice of granting the judgment and holding its entry into abeyance pending the resolution of the ancillary issues is not permitted under subdivision 7 which prohibits the granting of a judgment of divorce until all of the ancillary issues are resolved by the parties, or determined by the court and incorporated into the judgment of divorce. However, the court can still hear the testimony and reserve decision.
Irretrievable Breakdown Defined
The term “irretrievably broken” is not defined in the statute. Black's Law Dictionary states that “irretrievable breakdown of the marriage” is a ground for divorce that is based on incompatibility between marriage partners and that is used in many states as the sole ground of no-fault divorce. — Also termed irretrievable breakdown; irremediable breakdown of the marriage; irremediable breakdown. Cf. irreconcilable differences; incompatibility. However, it does not define the term which is different from “irreconcilable differences” which Black's Law Dictionary defines as “persistent and unresolvable disagreements between spouses, leading to the breakdown of the marriage. • These differences may be cited — without specifics — as grounds for no-fault divorce. At least 33 states have provided that irreconcilable differences are a basis for divorce. Cf. irretrievable breakdown of the marriage; incompatibility.”
An examination of the case law in other states which have adopted the “irretrievable breakdown” ground for divorce appear to indicate that a marriage has irretrievably broken down when the relationship is for all intents and
purposes ended. Where no guidelines are established as to what constitutes an irretrievable breakdown, courts consider each case individually, and the determination whether the marriage is broken must be based on an inquiry into all the surrounding facts and circumstances. In general, a marriage is irretrievably broken when, for whatever reason or cause and no matter whose fault, the marriage relationship is for all intents and purposes ended, when it is no longer viable, when the parties are unable, or refuse, to cohabit, or when it is beyond hope of reconciliation or repair. The principal question to be determined is whether the marriage is at an end and beyond reconciliation.
In some states irretrievable breakdown of a marriage may be sufficiently shown by both parties alleging the breakdown, or by one party seeking a divorce or dissolution on the ground of irretrievable breakdown, and the other seeking divorce or dissolution on a ground involving misconduct. In some states the decision that a marriage is irretrievably broken need not be based on any identifiable objective fact. It is sufficient that one or both parties subjectively decide that their marriage is over and there is no hope of reconciliation. Under one statute, where both parties by petition or otherwise have stated under oath or affirmation that the marriage is irretrievably broken, or one of the parties has so stated and the other has not denied it, the court, after considering the statement and holding a hearing on the matter must make a finding whether or not the marriage is irretrievably broken and enter an order of dissolution or dismissal accordingly.
The consensus appears to be that the term “irretrievable breakdown” means a breakdown of the marriage to the point that reconciliation is not possible or probable. For example, Alabama ‘s statute requires a finding that “further attempts at reconciliation are impractical or futile and not in the best interests of the parties or family. The Delaware statute requires a finding that reconciliation is improbable as proof that the marriage has irretrievably broken down. The Connecticut statute requires a period of separation “by reason of incompatibility” for a continuous period prior to the service of the complaint and that there is no reasonable prospect that they will be reconciled.” The Illinois statute requires a period of separation and a finding that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family. Kentucky laws provide that if one of the parties disputes that the marriage is irretrievably broken, the court must consider all relevant factors, including the prospect of reconciliation, and make a finding whether the marriage is irretrievably broken. The Wisconsin statute requires that the court find an irretrievable breakdown of the marriage with no possible chance at reconciliation.
The Uniform Marriage and Divorce Act § 305 (c) defines a finding of irretrievable breakdown as “a determination that there is no reasonable prospect of reconciliation.”
Some states couple the irretrievable ground with a period of separation of anywhere from sixty days to two years. For example Missouri law provides that if the defendant denies that the marriage is irretrievably broken, the plaintiff must prove one or more of what appear to be fault grounds, or that the parties have lived apart for 24 months. The Connecticut statute requires the parties to have lived apart by reason of incompatibility for a continuous period of at least the eighteen months.
Irretrievable breakdown has been adopted as a ground for divorce in the following 17 states: Alabama, Arizona , Colorado , Connecticut , Delaware , Florida , Georgia , Hawaii , Illinois , Indiana , Kentucky , Massachusetts , Minnesota, Missouri, Nebraska, Pennsylvania, and Wisconsin. However, none of the state laws define the term irretrievable breakdown.
Sufficiency of Proof and Defenses
It is clear from the statute that the court must find that the marriage is irretrievably broken as a predicate to the granting of a divorce. On its face Domestic Relations Law § 170(7) appears to allow the court to grant a judgment of divorce where one spouse states under oath that the relationship between husband and wife is irretrievably broken. This construction would eliminate any defenses to this ground. However, the authority in other jurisdictions which have adopted this ground for a divorce supports the conclusion that the defendant can raise the defense that the marriage is not irretrievably broken. Moreover, this construction does not eliminate the five year statute of limitations applicable to actions for a divorce. The Domestic Relations Law provides that no action for divorce may be maintained on a ground which arose more than five years before the date of the commencement of the action except where abandonment or separation pursuant to agreement or decree is the ground.
However, in those states where irretrievable breakdown is a ground for divorce it has been held that the court presiding over an action for divorce on the ground of irretrievable breakdown has a duty to determine whether the marriage is, in fact, irretrievably broken.