In 1969, then-Governor Ronald Reagan became the first to legalize “no-fault” divorce. California’s Family Law Act of 1969 started a trend of reform all over the country and now every State has a form of no-fault divorce.
What is “no-fault divorce”? Before no-fault divorce laws, in order to obtain a divorce, one spouse had to be found “at fault,” and the other spouse “innocent.” Some “faults” were things like adultery, abuse, or abandonment. If the “at fault” spouse wanted to be granted a divorce, they would need to obtain the consent of the “innocent” spouse. If a spouse could not prove fault, or if a spouse simply wanted a divorce due to personal differences and not because any wrongdoing occurred, they could not divorce.
When the Family Law Act of 1969 was signed, the reasoning behind making the change was due to issues with spouses having to prove the “fault” of the other while remaining blameless – otherwise any fault would cancel out the claim – leading to perjury. There were issues with hiring private investigators to follow parties around, and some even staged fake adulterous liaisons just to be able to get a divorce, even if they were found to be the “at fault” party. Finally, lawmakers reasoned that allowing parties, specifically women, to divorce without making such lurid accusations would reduce instances of domestic abuse.
Lawmakers were correct about abuse. Researchers who tracked the passage of no-fault divorce laws among the states noticed a dramatic drop in rates of female suicide, domestic violence, and spousal homicide of women. One research opined this was “not just because abused women (and men) could more easily divorce their abusers, but also because potential abusers knew that they were more likely to be left.”
There is no argument that with the proliferation of no-fault divorce laws came an increase in the divorce rate. There is, however, much misconception about what that divorce rate was. The oft-quoted “50% of all marriages end in divorce” is inaccurate. That idea came from when the U.S. Census Bureau noted one year that there had been 2.4 million marriages and 1.2 million divorces. This statistic, however, was only counting the number of marriages that occurred year, ignoring all of the marriages already in existence.
Nevertheless, the national divorce rate peaked in 1980, when there were 22.6 divorces for every 1,000 married women. This was likely due to the fact that more women were entering the workforce, meaning less women were stuck in marriages they did not want for economic factors. Before the 1970s, women were not able to apply for their own credit cards, had no workplace protection for pregnancy, sexual harassment, or discrimination, had no housing protection against discrimination, or, in some cases, have any control over money or property if they were married.
Despite the legal and practical reasoning behind no-fault divorce laws, there is an increasingly-vocal push to abolish them. Podcaster Steven Crowder stated that his own divorce was “not my choice” and said, with some derision, “my then-wife decided that she didn’t want to be married anymore.” Crowder has also made statements about needing “to reform divorce laws in this country” because women with “no skill set” are marrying men just to divorce him and “take half.” Another commentator, Matt Walsh, has stated that he has been “publicly opposed to no fault divorce for as long as I’ve had a platform.”
U.S. Senator JD Vance has stated that no-fault divorce laws make it “easier for people to shift spouses like they change their underwear” and experienced skepticism about “violent” or “unhappy” marriages. Mike Johnson, who is currently the Speaker of the House, has also been vocal about his opposition to no-fault divorce, blaming it for “turning the United States into a completely amoral society.”
In 2022, the Texas GOP called for the legislature to “rescind unilateral no-fault divorce laws, to support covenant marriage, and to pass legislation extending the period of time in which a divorce may occur to six months after the date of filing for divorce.” A “covenant marriage” is a religiously-influenced distinct type of marriage in which spouses agree to obtain counseling and to limited grounds to seek a divorce. Covenant marriages are legal – though voluntary – in Arizona, Arkansas, and Louisiana. Republican groups in Louisiana and Nebraska have called for similar reform to no-fault divorce laws.
Critics of no-fault divorce laws often cite divorce rates and harm to children as reasons why individuals should need to prove specific grounds for a divorce. A 2019 study, however, by World Psychology found that while children may struggle with the transition of divorce, most children of divorced parents “exhibit no obvious psychological problem.” Additionally, as noted above, divorce rates have been a topic rife with misinformation. In fact, children of high-conflict marriages typically benefit from divorce. Further, the U.S. divorce rate actually hit a 50-year low in 2019 per Census data from 2020.
Doing away with no-fault divorce laws would likely have multiple impacts. As noted, instances of suicide and spousal homicide could again increase. No-fault divorce is, in the words of Joanna L. Grossman and Natalie Nanasi for Justia, “an escape hatch for abused spouses.” In fact, despite Crowder denying that his marriage involved abuse, a Ring camera video leaked after he complained about his divorce showed Crowder berating and threatening his ex-wife, who was eight months pregnant. Survivors of domestic violence often do not seek divorce based upon “cruelty” grounds, as making those accusations publicly can be exceptionally dangerous. Further, having to “prove” abuse in a courtroom can cause survivors to be traumatized and re-victimized.
There are also due process considerations. Doing away with no-fault divorce essentially means forcing an individual to remain in a marriage they may not want. It could make the divorce process significantly more costly and delayed. Most divorces are settled out of court, and many are settled without any court intervention at all. If a spouse has to prove “fault,” it is an entirely new layer of litigation that must be added to whatever issues in that marriage must be litigated already.
For now, no-fault divorce is legal in all 50 states, and the only “grounds” one needs is “irreconcilable differences.” If you are considering filing a divorce, or your spouse has filed a divorce, an experienced family law attorney can assist you in determining your options and the best strategy for your case.