Last month, a judge in Kentucky made a decision unusual enough to be reported in legal news sites – he denied a divorce, not on procedural grounds, but because the marriage between the couple was not actually “irretrievably broken.”  He cited the unusual courteousness and respected the couple had for each other, the long-term goals they had developed for themselves and their child, and their history of working “extraordinarily well” with each other.  Rather than grant the divorce, the judge ordered the couple to seek counseling “to determine if the issues that motivated the filing of the Petition for Dissolution may be resolved without ending the marriage.”

In my experience, ordering counseling when a couple has already decided the marriage is “irretrievably broken” would be a pretty unusual ruling in San Diego.  I have never heard a judge inquire into the reasons a couple might seek to get divorced or question the decision of a couple who submitted it.  The closest I’ve seen is the perfunctory “litany of status” that gets recited at a Mandatory Settlement Conference, wherein the Petitioner confirms that they meet the residency and venue requirements and that “irreconcilable differences” have arisen, and that nothing the Court can do could lead to a resolution of those differences.  It is, to be blunt, a formality.

But what exactly are irreconcilable differences, and why do most of the Petitions for Dissolution that we file check that they exist?  (There are other grounds, such as permanent legal incapacity, but I will not be discussing those).  The introduction of “irreconcilable differences” as grounds for divorce harkens back to the shift of California to a no-fault divorce state, as established by the Family Law Act.  (In re Marriage of McKim (1972) 493 P.2d 868).  The Report of 1969 Divorce Reform Legislation of the Assembly Committee on Judiciary (4 Assem. J. (1969) p. 8054) represented the Legislature’s search for “a basis for dissolution which is descriptive of the actual reasons underlying marital breakdown.”  They chose “irreconcilable differences, which have caused the irremediable breakdown of the marriage.”  That standard is now encoded in Fam. Code Section 2310, and clarified in 2311 as “those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved.”  It is now not only unnecessary but statutorily inappropriate to plead specific acts of misconduct under Fam. Code Section 2335, and cases such as Diosdado v. Diosdado have found it is inappropriate for couples to make agreements based on a theory of fault.

While the Courts may treat the existence of irreconcilable differences in a perfunctory way, that was not necessarily always the case.  See Marriage of McKim, supra.  The Assembly Report states that the “court should sit as an overseeing participant to do its utmost to effect a healing of the marital wounds.”  Indeed, Fam. Code Section 2334 requires the Court to grant a 30-day continuance, as the judge in Kentucky did if reconciliation appears reasonably possible.

When is the last time you have seen a judge ‘heal marital wounds’?

“Irreconcilable differences” is a matter of subjective mental states – the marital differences are supposed to be substantial and that there is no reasonable possibility of reconciliation.  Marriage of Walton (1972) 28 Cal.App.3d 108, 116-119.  Because it is a subjective question, the Court need not rely on objective facts – the subjective mental state is enough.  Marriage of Greenway (2013) 217 Cal.App.4th 628, 652-653.  The Court is supposed to have an actual hearing on this issue – it is a reversible error for a Court to deny a Petition based on a prediction that there are no irreconcilable differences.  Marriage of Straczynski (2010) 189 Cal.App.4th 531, 539.

It is the combination of the subjective mental state and the fact that Fam. Code 2333 is a “shall” rather than a “may” statute that has led to the perfunctory treatment of the question of the irreconcilable difference by California courts.  If a party claims irreconcilable differences, what is the public policy gain by questioning it further?  Hence, the perfunctory litany that most of us have engaged in at various times.  Occasionally, our clients’ taking of marital status is even offered as a “door prize” for engaging in Mandatory Settlement Conferences.

Was that the intent of the Legislature?  At one point, the public policy was considered to favor the continuation of marriage.  Now, easy divorce (when it comes to status, at least) appears to be in favor, a mere 50 years later.  What will the situation be 50 years from now?  Impossible to say.

Written by: Christopher McDonough, Esq.