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14-10-110. Irretrievable breakdown.

Statute text

(1) If both of the 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, there is a presumption of such fact, and, unless controverted by evidence, the court shall, after hearing, make a finding that the marriage is irretrievably broken.

(2) If one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that gave rise to the filing of the petition and the prospect of reconciliation, and shall:

(a) Make a finding whether the marriage is irretrievably broken; or

(b) Continue the matter for further hearing not less than thirty-five days nor more than sixty-three days later, or as soon thereafter as the matter may be reached on the court's calendar, and may suggest to the parties that they seek counseling. At the adjourned hearing, the court shall make a finding whether the marriage is irretrievably broken.

History

Source: L. 71: R&RE, p. 523, 1. C.R.S. 1963: 46-1-10. L. 2012: (2)(b) amended, (SB 12-175), ch. 208, p. 831, 26, effective July 1.

Annotations

Cross references: For marriage counseling, see article 12 of this title.

Annotations

 

ANNOTATION

Annotations

Law reviews. For article, "Is Residence of the Plaintiff, in Colorado, Necessary to Support a Divorce Action Based on Cruelty Within the State, If Defendant Is a Resident of Colorado?", see 24 Dicta 110 (1947). For article, "When the State Had an Interest in Marriage: Colorado's Divorce Acts, 1861-1917", see 16 Colo. Law. 1627 (1987).

Annotator's note. Some of the cases appearing under 14-10-110 were decided under repealed 46-1-1, C.R.S. 1963, 46-1-1, CRS 53, CSA, C. 56, 1, and laws antecedent thereto, which specifically enumerated the grounds for divorce.

Marriage is a contract between the parties, but it is distinguishable from the ordinary civil contract. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).

Marriage is the subject of a more immediate interest to the state than is the ordinary contract. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).

Marriage is not a "contract" within the meaning of the contract clause of the constitution. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).

General assembly control of marriage is constitutional. Since marriage is not a contract within the meaning of the constitutional contract clause, the general assembly has broad control over it, the reasonable exercise of which will not run afoul of the constitutional protection of contracts. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).

In attempting to increase availability of divorces to estranged spouses, the general assembly recognized that public policy does not encourage keeping two people together once the legitimate objects of matrimony have ceased to exist. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).

Decree not automatic. Although the dissolution of marriage statute was intended as a "no-fault" divorce act, the actual granting of the decree is not automatic or perfunctory under all circumstances. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).

Court's discretion to continue case sufficient safeguard against hastiness. The general assembly declined to include in the Colorado act, which is modeled on the uniform dissolution of marriage act, the language of the uniform act allowing the court to order a conciliation conference, and thus, in effect, determined that vesting discretion in the court to continue the case from 30 to 60 days was sufficient safeguard against hasty and insensate decisions. In re Baier, 39 Colo. App. 34, 561 P.2d 20 (1977).

"Irretrievable" breakdown is no more vague or incapable of definition than "became impotent through immoral conduct", has been "extremely and repeatedly cruel", or being an "habitual drunkard", all of which constituted, under the prior Colorado statute, grounds for divorce. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).

A finding of irretrievable breakdown is one of fact and, where the allegation of the petition is denied, it must be proven as any other essential element of the cause of action. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).

Where the parties do not agree as to the breakdown of the marriage, it is imperative for the court to weigh all the evidence and make its own independent determination of that fact. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).

The issue of whether a marriage has been irretrievably broken is a question of fact to be resolved upon consideration of the facts and circumstances of each case, and the factors underlying that determination will necessarily vary from case to case. In re Baier, 39 Colo. App. 34, 561 P.2d 20 (1977).

Finding of irretrievable breakdown must be proved when denied. While the dissolution of marriage act did eliminate all the former defenses to divorce in this state, it did not eliminate the necessity of proving an irretrievable breakdown where that basic allegation is denied in the pleadings. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).

No requirement that valid goals of marriage must be unattainable. There is no requirement that for the marriage to be beyond redemption, substantial proportion of legitimate objectives of a marriage must be no longer attainable by the parties. In re Baier, 39 Colo. App. 34, 561 P.2d 20 (1977).

Elucidating valid goals of marriage which must be either lost or beyond accomplishment before the marriage can be classified as irretrievably broken would constitute an amendment to the act, and that power is reserved exclusively for the general assembly. In re Baier, 39 Colo. App. 34, 561 P.2d 20 (1977).

The parentage of a child is not an issue in a divorce or annulment action between the parents. Devereaux v. Devereaux, 144 Colo. 31, 354 P.2d 1015 (1960).

Formerly, before a court could enter its findings in favor of a defendant, it must have necessarily found that the defendant had not been guilty of a violation of the marriage contract. Schleiger v. Schleiger, 137 Colo. 279, 324 P.2d 370 (1958).

In a divorce action where a defendant pleaded grounds for divorce by way of counterclaim, the issue was the guilt or innocence of the parties on the grounds alleged against each other, and findings by a trial court that plaintiff was entitled to a divorce was necessarily a finding against the defendant on the issues. Schleiger v. Schleiger, 137 Colo. 279 324 P.2d 370 (1958).

Formerly, the grounds for divorce in this state were purely statutory. Pleyte v. Pleyte, 1 Colo. App. 70, 28 P. 23 (1891); Redington v. Redington, 2 Colo. App. 8, 29 P. 811 (1892); Githens v. Githens, 78 Colo. 102, 239 P. 1023 (1925).

For the former ground for divorce, adultery, see Redington v. Redington, 2 Colo. App. 8, 29 P. 811 (1892); Harding v. Harding, 36 Colo. 106, 85 P. 423 (1906); Jones v. Jones, 71 Colo. 420, 207 P. 596 (1922).

For the former ground for divorce, desertion, see Stein v. Stein, 5 Colo. 55 (1879); Calvert v. Calvert, 15 Colo. 390, 24 P. 1043 (1890); Johnson v. Johnson, 22 Colo. 20, 43 P. 130, 55 Am. St. R. 113 (1895); Hobbs v. Hobbs, 72 Colo. 190, 210 P. 398 (1922); Oates v. Oates, 72 Colo. 195, 210 P. 325 (1922); Mulhollen v. Mulhollen, 145 Colo. 479, 358 P.2d 887 (1961).

For the former ground for divorce, cruelty, see Sylvis v. Sylvis, 11 Colo. 319, 17 P. 912 (1888); Gilpin v. Gilpin, 12 Colo. 504, 21 P. 612 (1889); Williams v. Williams, 1 Colo. App. 281, 28 P. 726 (1892); Geisseman v. Geisseman, 34 Colo. 481, 83 P. 635 (1905); Harding v. Harding, 36 Colo. 106, 85 P. 423 (1906); Sedgwick v. Sedgwick, 50 Colo. 164, 114 P. 488 (1911); Shaff v. Shaff, 72 Colo. 184, 210 P. 400 (1922); Miller v. Miller, 90 Colo. 428, 9 P.2d 616 (1932); Hilburger v. Hilburger, 110 Colo. 409, 135 P.2d 138 (1943); Harms v. Harms, 120 Colo. 212, 209 P.2d 552 (1949); Mentzer v. Mentzer, 120 Colo. 412, 209 P.2d 920 (1949); Carroll v. Carroll, 135 Colo. 379, 311 P.2d 709 (1957); Schleiger v. Schleiger, 137 Colo. 279, 324 P.2d 370 (1958); Reed v. Reed, 138 Colo. 74, 329 P.2d 633 (1958); Lininger v. Lininger, 138 Colo. 338, 333 P.2d 625 (1958); Poos v. Poos, 145 Colo. 334, 359 P.2d 3 (1961); Harvey v. Harvey, 150 Colo. 449, 373 P.2d 304 (1962); Cochran v. Cochran, 164 Colo. 99, 432 P.2d 752 (1967); Moats v. Moats, 168 Colo. 120, 450 P.2d 64 (1969).

For the former ground for divorce, nonsupport by the husband, see Rogers v. Rogers, 57 Colo. 132, 140 P. 193 (1914).

Applied in In re Erickson, 43 Colo. App. 319, 602 P.2d 909 (1979); In re Lester, 647 P.2d 688 (Colo. App. 1982).