Many parties undergo counseling when their marriage is having problems. The hope for many is that marriage counseling can cause parties to understand each other better. It can help parties talk about their differences in the hope that the marriage can be saved.
Many parties cite positive results from marriage counseling. In fact, many are able to resolve their differences such that a divorce does not become necessary.
What happens where a divorce is filed and one party wants to go to counseling and the other does not? Can the court order marriage counseling?
The view of many is that marriage counseling cannot be ordered. They believe that marriage counseling is purely voluntary and that a court cannot order it in this day and age. The thought is that if one party wants a divorce, they are going to get it. And no court is going to get involved in ordering marriage counseling.
Obviously, the laws in each state vary. Thus, it is critical that a party speak to a divorce lawyer who is licensed and competent to practice in their jurisdiction.
It is also true as well marriage counseling likely works better where both parties actually want to be there. In other words, if one person does not wish to even be there, how can marriage counseling be successful? The truth is that the likelihood of success would seem to be much great where both desire it.
Having said that, there is legal authority in some states for courts to order marriage counseling in some circumstances. Take Illinois statute 750 ILCS 5/404 which states: “If the court concludes that there is a prospect of reconciliation, the court, at the request of either party, or on its own motion, may order a conciliation conference. The conciliation conference and counseling shall take place at the established court conciliation service of that judicial district or at any similar service or facility where no court conciliation service has been established.”
Missouri also allows a court to order counseling as well in RSMo.§ 487.100: “In any family court case the judge or commissioner may, on the judge’s or commissioner’s own motion or, at the request of a party, order or recommend mediation, counseling or a home study.” But RSMo. § 452.320 says at the same time: “No court shall require counseling as a condition precedent to a decree…” Thus, while counseling can be ordered, it just cannot be a condition precedent to granting a divorce at the same time.
Under Kansas law, the court can also order counseling. KS Stat § 23-2710 states: “After the filing of the answer or other responsive pleading by the respondent, the court, on its own motion or upon motion of either of the parties, may require both parties to the action to seek marriage counseling if marriage counseling services are available within the judicial district of venue of the action. Neither party shall be required to submit to marriage counseling provided by any religious organization of any particular denomination.”
Again, for anybody who is interested in having counseling ordered, it is vital that a party speak with an attorney. Even in states like Missouri, Illinois and Kansas where there is legal authority for counseling, the authority is discretionary. The terms “may” in all three statutes illustrate that a judge is not required to order counseling. Nonetheless, a motion for counseling is an option in some cases where many may conclude it is not.
If you are going through a divorce, and are interested in marriage and divorce counseling, you can call Stange Law Firm, PC at 1-855-805-5095.