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Can a Divorce Judge Court Order Marriage Counseling? The Answer May Surprise You

— July 31, 2020

If we simply remind our clients periodically throughout the process that marriage counseling is a viable option for some people, the instances of reconciliation would go up dramatically.

As a divorce attorney in Orlando Florida for nearly a decade now I have represented many clients through family and marital legal issues ranging from simple uncontested matters up through high conflict cases with allegations of epic proportions.

In my years as a divorce lawyer, I have developed the habit of referring most of my clients to marriage counseling prior to filing or finalizing their case.

Up until recently this has only been in the form of a friendly recommendation that I have made to my clients, however, when reviewing the Florida statute getting ready for a recent hearing I came across a part of the law that I admittedly did not even though was there.

Now I tell my clients that marriage counseling is a legal option in many cases.

This provision in the Florida divorce statute gives the court the ability to order marriage counseling and to pause the case for up to three months to permit for the possible reconciliation.

What Type of Situation Can the Court Order the Parties to Attend Marriage Counseling?

I will be the first to admit that it is rare to see a judge who is willing to court order marriage counseling. From a reading of the statutory language it appears that the judge is given latitude to use their own discretion as to whether there is a chance for reconciliation in which case, they can order couples therapy.

The statute specifies: 

When there is a minor child of the marriage, or when the responding party denies by answer to the petition for dissolution that the marriage is irretrievably broken, the court may:

1. Order either or both parties to consult with a marriage counselor, psychologist, psychiatrist, minister, priest, rabbi, or any other person deemed qualified by the court and acceptable to the party or parties ordered to seek consultation; or

2. Continue the proceedings for a reasonable length of time not to exceed 3 months, to enable the parties themselves to effect a reconciliation.” Fla. Stat. § 61.052 (2)(b).

A standard petition for dissolution of marriage in Florida, as in most states, must include an allegation that the marriage between the parties is irretrievably broken.

In any no-fault divorce state this language is critical to giving the court what it needs in order to grant a divorce.

However, very few people are aware that pursuant to this section of the statute if the respondent spouse files an answer denying that the marriage is irretrievably broken and requests that the court continue the action to allow for marriage counseling the court does have the discretion and authority to grant that request.

This is especially true if there is evidence that a reconciliation could be possible.

What Evidence Can I Show to Prove That a Reconciliation Could Be Possible?

Our Orlando divorce law firm prides itself on the fact that we are very strategic thinkers, which comes in handy when we are posed with this type of fact pattern.

My mentors and all the best lawyers I know all share this trait, so it has always been something that was very important to me to practice early in my career.

Sometimes in our cases we have to think outside the box in order to prove up our position in the case. 

Unfortunately, not just anybody out there is able to easily show evidence that a reconciliation is possible as it requires some careful strategy.

I have seen cases over the years where the parties were getting divorced for the sole reason that they could not agree on money.

Image of a Money Tree
Money Tree; image courtesy of
kalhh via Pixabay,

The husband was the saver and the wife was the spender. Ever heard of that cliché example?

Well it happens all the time and it is a shame when it leads to divorce, because with a little counseling the parties could have had a long-lasting marriage.

That is why this is our first and prime example of a situation when testimony could provide the judge the ability to find that a reconciliation is possible.

Another example could be when a married couple has different approaches to parenting. One parent is the disciplinarian while the other is the easy-going parent.

Obviously, a little therapy could help the situation especially if they otherwise have a good relationship.

I have seen this scenario lead to divorce, and I believe that an argument could be made that counseling could save that marriage as well.

In situations where there is domestic violence, infidelity, addiction, or other more serious issues in the pleadings I think the judge would be far less likely to court order marriage counseling.

In conclusion, as divorce professionals whether it be lawyers, judges, or mediators it is important that we remember that a final judgment of divorce is not always the only possible outcome for the case.

If we simply remind our clients periodically throughout the process that marriage counseling is a viable option for some people, the instances of reconciliation would go up dramatically.

This would be a good thing.

I have seen this in my own practice. We commonly have one to two cases per month that go on hold for the parties to attend marriage counseling. This is far higher than any of my other colleagues who do divorce law and I believe that this is because I simply remind my clients early in the process that marriage counseling is an option that many couples choose and that actually can work out.

I stop there and I do not press more than I should. I simply plant the seed of thought and I find that if a reconciliation is possible, that seed can grow into action.

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