An Irretrievably Broken Marriage: Who Decides?

Photo by Kelly Sikkema on Unsplash

Emily Schmidt, Associate Member, University of Cincinnati Law Review

I. Introduction

In 2019, there were over 746,971 divorces across the United States.[1] In one case, after 13 years of marriage and with over $13,000 spent on counseling and attorney fees, two parties amicably requested a divorce in a hearing with a Kentucky family court judge—a seemingly routine proceeding.[2] However, the court instead ordered the two to continue marriage counseling.[3] The court reasoned their marriage was not yet “irretrievably broken.”[4] 

This article will discuss Kentucky’s requirements for divorce. Section II will provide background on the Uniform Marriage and Divorce Act and the relevant Kentucky Revised Statute provisions on marriage dissolution. Section III will discuss the role of the court in determining when a marriage should end. Finally, Section IV will conclude by proposing a change in Kentucky law to give parties in uncontested divorce proceedings more deference when evaluating irretrievable brokenness.

II. Background

The Uniform Marriage and Divorce Act (“UMDA”) was created in 1970 as a model for state legislatures to reform “the entire conceptual structure” of marriage and divorce laws.[5] Eight states, including Kentucky, adopted the UMDA.[6] Most notably, the UMDA embraced the concept of no-fault divorce, instead making “irretrievable breakdown” the sole basis for marriage dissolution.[7] Kentucky codified these model laws in Kentucky Revised Statute Chapter 403.[8]

Kentucky Revised Statute § 403.140 states that a court “shall enter a decree of dissolution of marriage” if the court finds: at least one party is a Kentucky resident, the parties have attempted reconciliation (if previously ordered), the marriage is irretrievably broken, and collateral issues like child support and property disposition have been considered.

When the Kentucky legislature created this statute in 1972, they provided the purposes behind marriage dissolution laws, which include:

(1) To strengthen and preserve the integrity of marriage and safeguard family relationships;

(2) To promote the amicable settlement of disputes that have arisen between parties to a marriage; and

(3) To make the law of legal dissolution of marriage effective for dealing with the realities of matrimonial experience by making irretrievable breakdown of the marriage relationship the sole basis for its dissolution.[9]

An irretrievable breakdown is the key to a divorce in Kentucky, serving as the sole basis for marriage dissolution.[10] There are two scenarios in which a Kentucky court may find a marriage is irretrievably broken.[11] The statute defines an “irretrievable breakdown” as “no reasonable prospect of reconciliation.”[12]

In the first scenario, both parties agree—by petition, under oath, or affirmation—that their marriage is irretrievably broken. Yet, a court must then hold a hearing to “make a finding whether the marriage is irretrievably broken[.]” A court will not enter a decree until the parties have lived apart for at least sixty days, and it may order the parties to participate in a conciliation conference.[13] Interestingly, even with mutual assent from the parties, the court makes the final determination of whether the marriage is irretrievably broken. Without that finding, the parties are unable to divorce. This judicial discretionary authority to decide when a marriage is irreconcilable derives from the language used in the Uniform Marriage and Divorce Act.[14]

In the second scenario, one of the parties denies that the marriage is irretrievably broken. The court must then consider factors such as the circumstances that gave rise to the divorce filing and the prospects of reconciliation. As a result, the court may either make a finding that the marriage is irretrievably broken or reschedule the hearing and suggest that the parties seek counseling.[15]

III. Discussion

The parties in the recent Kentucky divorce proceeding fit into the first scenario. Both parties wanted a divorce; there was no disagreement between the two as to whether their marriage was irretrievably broken.[16] At their hearing in family court, the judge told the parties that she “g[o]t the vibe that you all might be able to work this out,” despite the parties’ multiple prior attempts at counseling.[17] When the judge asked the parties whether they would benefit from an order to go to reconciliation counseling, both answered no.[18]

Nonetheless, the court issued an order further delaying their divorce proceeding. The order suggested that the parties explore online resources and traditional counseling “to determine if the issues that motivated the filing of the Petition for Dissolution may be resolved without ending the marriage.”[19]

Based upon the record and testimony, the court explained why it was unable to determine that the marriage was irretrievably broken.[20] First, the parties had worked together well to co-parent their child. Second, the couple made “remarkable and telling achievements” by weathering the stress of being a long-term military family. Third, the parties were both “respectful and courteous . . . [with] dignified and mature composure.”[21] The court observed “these parties to be two people who have lost the ability to communicate with one another about their emotional relationship and, perhaps, have let their pride become a wall between them.”[22] The order made no note of the parties’ time and money previously invested into attempts to mend the marriage.

The order for counseling was unexpected by both parties and their respective counsel. One party’s counsel stated in an interview that “it would be a tragedy for every citizen of [Kentucky] if this were to be upheld as some valid precedent in the future.”[23] Understandably, it seems unfair for a judge to prolong divorce proceedings in a case where two cordial, mature adults both express the uncontested desire to end their marriage. In fact, the rationale employed in this decision could encourage parties to treat one another with less respect and more contempt in the courtroom—to convince a judge that a marriage cannot be reconciled.

Kentucky case law on the issue is sparse. Most recently, an unpublished 1986 Kentucky Court of Appeals opinion stated that “deciding whether a marriage has failed is not simply a matter for agreement by the parties but, given the public interest in preserving such unions, is instead a conclusion to be drawn by the court.”[24] Similarly, the court in the recent Kentucky ruling cited to the statutory intentions to “strengthen and preserve the integrity of marriage,” while noting the decision was “highly unusual.”[25] Given the unusual nature of the ruling and lack of precedent, this rationale is unlikely to gain traction in Kentucky courts when both parties agree that their marriage is irretrievably broken.

The Kentucky legislature should consider the consequences of giving judges unfettered discretion to decide whether a marriage is irretrievably broken.[26] When two parties mutually agree to dissolve their marriage, a court order delaying divorce proceedings may result in more harm than good. The parties involved must continue to invest time, money, and emotional labor into court costs, attorney fees, and marriage counseling. Additionally, the court system expends unneeded judicial resources by delaying proceedings, requiring additional filings and court hearings.

IV. Conclusion

In adopting the Uniform Marriage and Divorce Act, the Kentucky legislature decided that a judge determines when a marriage is irretrievably broken, not the parties to the marriage itself. As a result, courts may choose to uphold the “integrity of the marriage” over the shared intentions of the actual parties to that marriage. Kentucky legislators should consider amending Ky. Rev. Stat. § 403.170(1) to eliminate judicial discretion and eliminate the requirement for a hearing on a marriage’s “irretrievable brokenness” when neither party contests the divorce.[27] In dissolution proceedings, parties should not have to postpone an uncontested divorce because they treat each other too respectfully in court.


[1]National Center for Health Statistics, Marriage and Divorce, Centers for Disease Control and Prevention (May 4, 2021),

[2] Julie Dolan, Unusual Ruling: Kentucky Judge Denies a Couple’s Divorce, WLKY News (Sept. 4, 2021),,

[3] Order for Counseling, In re the Marriage of Potts v. Potts at 3 (Bullitt Cir. Ct. Ky., Aug. 23, 2021),

[4] Id. at 2.

[5] See Unif. Marriage and Divorce Act (amended 1973), 9A U.L.A. (1970) [hereinafter UMDA].

[6] UMDA Refs & Annos (West 2020). Arizona, Colorado, Illinois, Minnesota, Missouri, Montana, and Washington have also adopted the UMDA. Id.

[7] See UMDA §§ 102 and 305.

[8] See Ky. Rev. Stat. §§ 403.010 to 403.350.

[9] Ky. Rev. Stat. §§ 403.110(1), (2), and (5). See also UMDA § 102 (providing model language used in Ky. statute).

[10] Ky. Rev. Stat. § 403.110(5).

[11] See Ky. Rev. Stat. §§ 403.170(1) and (2). See also UMDA § 305 (providing model language used in Ky. statute).

[12] Ky. Rev. Stat. § 403.170(3).

[13] See Ky. Rev. Stat. § 403.170(1).

[14] See UMDA § 305(a).

[15] See Ky. Rev. Stat. § 403.170(2).

[16] See Dolan, supra note 2.

[17] Id.

[18] Id.

[19] Order for Counseling, supra note 3, at 3.

[20] Id. at 1-2.

[21] Id. at 1.

[22] Id. at 2.

[23] Dolan, supra note 2.

[24] Clark v. Clark, 1986 Ky. App. LEXIS 1211, at *10-11 (citing Laffosse v. Laffosse, 564 S.W.2d 220 (Ky. Ct. App. 1978)).

[25] Order for Counseling, supra note 3, at 2.

[26] Two drafters of the UMDA raised the issue of judicial discretion to the drafting committee and proposed a provision that “would have required judges” to find a marriage irretrievably broken “if the dissolution petition was jointly filed.” The proposal was rejected. See Robert J. Levy, A Reminiscence About the Uniform Marriage and Divorce Act – Some Reflections About Its Critics and Its Policies, 1991 BYU L. Rev. 43, 46, n.6 (1991).

[27] Kentucky Revised Statute § 403.170(1) reads in relevant part: “If both of the parties by petition or otherwise have stated under oath or affirmation that the marriage is irretrievably broken, . . . the court, after hearing, shall make a finding whether the marriage is irretrievably broken.” This article proposes removing the phrase “after hearing” and replacing “whether” with “that” to eliminate judicial discretion when the parties are in agreement.


  • Emily (Schmidt) Childress graduated from the University of Cincinnati College of Law in 2023. Prior to law school, Emily received her undergraduate degree in social work from the University of Nebraska at Omaha, and a master’s degree in social work from Brescia University. Emily’s favorite part of Law Review was having the opportunity to write about a variety of legal topics spanning areas such as mental health, legal ethics, houseplants, and consumer finance. Her intellectual curiosity has fueled her love for legal research. As a 3L, Emily served the UC Law Review as the Blog Chair.

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