Court Cases & Orders

U.S. Judge Refuses to Divorce Couple – And Sends Them Back to Counselling

Written by Russell Alexander / (905) 655-6335

U.S. Judge Refuses to Divorce Couple – And Sends Them Back to Counselling

In a recent ruling from a Kentucky Family Court judge, a separated couple had appeared before a judge to obtain a divorce order in the usual manner – but were surprised to learn that the judge declined to grant them one, and was sending them back for marriage counselling instead.

The couple had been married 13 years, and finally separated in late 2020.  This was despite trying to make it four times, and spending more than $13,000 on legal fees and counselling. And while they both considered their marriage had fallen apart, they had done well in maturely putting their child’s needs ahead of their own and, in the husband’s words, were “cordial for the sake of our child”.

But given the spouses’ demonstrated ability to cooperate and deal with each other amicably, this twigged the judge to conclude that they might be primed not to divorce – but rather to work things out between themselves.

In a hearing held remotely in mid-August, 2021, the judge said to the separated couple: “I get the vibe that you might be able to work this out, and I could be wrong, but I sit through a lot of these things.”  She asked them whether it would be beneficial to either of them to order them to attend reconciliation counselling.

The wife said “no”, noting that their separation had been “a year in the making”, and that they were likely “past that”.

But this did not sway the judge.  Under Kentucky Family Law, before granting a divorce a court was required to make a finding that the marriage is “irretrievably broken”, since that is the sole basis for dissolving a marriage in that state.  The law also requires the court to liberally construe the law so as to “strengthen and preserve the integrity of marriage and to safeguard family relationships”.

The judge said that in this highly unusual case, she was unable to make a finding that the marriage was irretrievably broken, based on the couple’s evidence.  Instead, the judge said, the husband and wife were merely “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.”

The judge then ordered that they attend counseling until mid-October 2021.  And while neither of them had asked for this remedy, the judge also ordered they were not allowed to introduce the child to any new romantic partner, until the action was finalized.

(Despite this latest ruling, their story is not over:  The wife’s lawyer reacted by immediately filing another motion to dissolve the marriage, asking that it be set aside, and noting that the judge’s order was not “final” in nature so it was not subject to an appeal in the usual course of proceedings.  That decision will be available in the coming days.)

For the full text of this Kentucky decision, see:

Potts. v. Potts


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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.