Effective 28 Aug 1977

452.320. Finding that marriage is irretrievably broken, when — notice — denial by a party, effect of — alternate findings. — 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, the court, after considering the aforesaid petition or statement, and after a hearing thereon shall make a finding whether or not the marriage is irretrievably broken and shall enter an order of dissolution or dismissal accordingly.

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 after hearing the evidence shall

(1) Make a finding whether or not the marriage is irretrievably broken, and in order for the court to find that the marriage is irretrievably broken, the petitioner shall satisfy the court of one or more of the following facts:

(a) That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(b) That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(c) That the respondent has abandoned the petitioner for a continuous period of at least six months preceding the presentation of the petition;

(d) That the parties to the marriage have lived separate and apart by mutual consent for a continuous period of twelve months immediately preceding the filing of the petition;

(e) That the parties to the marriage have lived separate and apart for a continuous period of at least twenty-four months preceding the filing of the petition; or

(2) Continue the matter for further hearing not less than thirty days or more than six months 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. No court shall require counseling as a condition precedent to a decree, nor shall any employee of any court, or of the state or any political subdivision of the state, be utilized as a marriage counselor. At the adjourned hearing, the court shall make a finding whether the marriage is irretrievably broken as set forth in subdivision (1) above and shall enter an order of dissolution or dismissal accordingly.

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(L. 1973 H.B. 315 § 5, A.L. 1977 H.B. 470)

(1976) This act is not a true "no fault" dissolution law and dissolution should not be granted over the objection of an innocent spouse. In re Marriage of Mitchell (A.), 545 S.W.2d 313.

(1977) If a party denies under oath that a marriage is irretrievably broken the court must find one of the statutory grounds has been met. Failure to prove any of these grounds must result in a refusal to dissolve the marriage. In re Marriage of Capstick (A.), 547 S.W.2d 522.

(1977) Held, parties had been living "separate and apart" even though they lived in the same home. In re Marriage of Uhls (A.), 549 S.W.2d 107.

(1977) Failure to mail notice does not deprive the court of jurisdiction. LeBeau v. LeBeau (A.), 556 S.W.2d 204.

(1977) Court erroneously applied the law by failing to hold a hearing on whether marriage is irretrievably broken, when absent party, after receiving notice of interlocutory finding, files an objection within ten days. Brown v. Brown (A.), 561 S.W.2d 374.

(1978) Court must make specific finding that marriage was irretrievably broken before granting a decree of dissolution, B.W. v. F.E.W. (A.), 562 S.W.2d 137.