What Constitutes an ‘Irretrievably Broken’
Relationship?
The legislature failed to define the term "irretrievably
broken" in the statute, which leaves the question open to
interpretation. Black's Law Dictionary (8th ed. 2004) states that an
"irretrievable breakdown of the marriage" is a ground for divorce based
on incompatibility that is used in many states as the sole ground of
no-fault divorce. It defines "irreconcilable differences" 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.
An examination of the case law in other states that have
adopted the "irretrievable breakdown," as opposed to "irreconcilable
differences" as a ground for divorce appear to indicate that a marriage
has irretrievably broken down when the relationship is for all intents
and purposes ended. 27A C.J.S. Divorce § 30. Where no guidelines are
established as to what constitutes an irretrievable breakdown, courts
consider each case individually, (see, e.g., Flora v. Flora, 166 Ind.
App. 620 (1st Dist. 1975); Joy v. Joy, 178 Conn. 254 (1979)) 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 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. In others,
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, will suffice (see, e.g., Herring v.
Herring, 237 Ga. 771 (1976)). 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. See, e.g., Caffyn v. Caffyn, 441 Mass. 487 (2004).
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. The consensus among the states appears to be
that the term "irretrievable breakdown" means a breakdown of the
marriage to the point that reconciliation is not possible or probable.
In adition, 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." See Ula Marr & Divorce § 305.
A Matter of Proof
It is clear from the statute that in New York the court
must find that the marriage is irretrievably broken as a predicate to
the granting of a divorce. On its face, D.R.L. § 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 that have adopted this
ground for a divorce supports the conclusion that the defendant can
raise the defense that the marriage is not irretrievably broken. States
where irretrievable breakdown is a ground for divorce have 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. See, e.g., Mize v. Mize, 891 S.W.2d 895
(Mo. Ct. App. W.D. 1995).
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 that 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. D.R.L. § 210.
Problems of proof arose recently in Strack v. Strack,
N.Y.S.2d, 2011 WL 356058 (N.Y.Sup.), the first reported case to construe
the statute. There, the Supreme Court found that the grounds set forth
in D.R.L. § 170(7) were subject to the five-year statute of limitations
and that the legislative history pertaining to D.R.L. § 170(7) supported
its conclusion that D.R.L. § 170(7) was simply a new cause of action
subject to the same rules of practice governing the subdivisions that
have preceded it. It noted that D.R.L. § 173 provides that "[i]n an
action for divorce there is a right to trial by jury of the issues of
the grounds for granting the divorce" and, that the legislature failed
to include anything in D.R.L. § 170(7) to suggest that the grounds
contained therein were exempt from this right to trial. It noted that
the phrase "broken down such that it is irretrievable" is not defined in
the statute, and the determination of whether a breakdown of a marriage
is irretrievable is a question to be determined by the finder of fact.
The court held, however, that whether a marriage is so broken that it is
irretrievable need not necessarily be so viewed by both parties, and
that the fact-finder may conclude that a marriage is broken down
irretrievably even though one of the parties continues to believe that
the breakdown is not irretrievable and/or that there is still some
possibility of reconciliation.
One More Consideration
It should be noted also that no judgment of divorce may
be granted upon a finding of irretrievable breakdown 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. D.R.L. § 170 (7 ) as added by Laws of
2010, Ch 384.
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.
