An End to No Fault Divorce?

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The concept of no-fault divorce, where a spouse can file for and be granted a divorce without proving any wrongdoing on the part of their partner, has been around for quite a while now. The first such law was signed in California by Ronald Reagan in 1969. The practice spread until all 50 states had implemented the policy, with New York being the last in 2010. But now some primarily conservative lawmakers in a number of states are pushing initiatives to either end no-fault divorce entirely or at least put greater restrictions on the practice. This would be a rather stunning reversal, but is America ready to return to a model of marriage that was last seen in the sixties? (The Guardian)

Some prominent conservative lawmakers and commentators are advocating for ending no-fault divorce, laws that exist in all 50 US states and allow a person to end a marriage without having to prove a spouse did something wrong, like commit adultery or domestic violence.

The socially conservative, and often religious, rightwing opponents of such divorce laws are arguing that the practice deprives people – mostly men – of due process and hurt families, and by extension, society. Republican lawmakers in Louisiana, Oklahoma, Nebraska and Texas have discussed eliminating or increasing restrictions on no-fault marriage laws.

Defenders of the laws, which states started passing a half-century ago, see legislation and arguments to repeal them as the latest effort to restrict women’s rights.

Divorce is nearly always awful for everyone concerned. I seriously doubt there are people out there dreaming of the possibility of getting a divorce someday. Sadly, however, the reality is that not all marriages work out and last a lifetime. The most appropriate way to end a union is viewed very differently along gender lines, however. Men are far more likely to oppose no-fault divorce because divorces produce disproportionately negative impacts on the husbands than the wives, particularly in financial terms.

Men still earn higher salaries than women on average, with females only bringing in 82% as much as males. So if the court orders either partner to pay alimony following the divorce, it’s typically going to be the husband. Also, mothers are generally awarded custody of any children from the marriage in all but the worst cases of abuse. As a result, child support payments typically only flow in one direction. If the couple owns a home and divorces, the judge will typically order that the house be sold and the proceeds divided unless the couple comes to a different agreement on their own. But that’s not always the case. If one partner is granted custody of the children and requests to stay in the home, that is sometimes allowed. And it’s typically the woman who gets custody. 

I also believe that no-fault divorce has been a leading contributor to declining rates of marriage and lower birth rates as a result. The looming possibilities are no doubt offputting to many people considering taking the leap, particularly among men (again). The idea that you can marry the love of your life only to have her turn around six months later out of the blue and serve you with papers that result in her demanding half of your income for decades to come is obviously frightening. It’s almost enough to make you envious of all of the people in gay marriages out there. At least they don’t have to worry about sorting things out in the same fashion or dealing with gender bias in the family court system.

The idea of ending no-fault divorce is receiving tremendous pushback, however, primarily from women’s groups. They worry about a return to a time when a woman might be stuck in an abusive marriage. If she can’t prove in court that abuse was taking place, she might still be able to flee, but she would have no access to any family assets and couldn’t legally remarry later on. That’s obviously a legitimate concern, but marriages end because of many reasons besides physical abuse. 

Rather than flatly ending no-fault marriage entirely and returning to the past, perhaps the current concept could be reimagined. If one partner seeks a divorce but the other opposes the idea and wants to save the relationship, perhaps an initial waiting period could be imposed before the divorce is granted, allowing things to cool off a bit and perhaps save the union. If the divorce is still pursued, states could impose stiffer limits on the separation of assets and future payments from the partner who opposed it. I’m just spitballing here, but it does feel as if the current system of divorce in America is long overdue for an overhaul and it could be done without ending the concept of no-fault divorce entirely. Also, that’s kind of a silly name to begin with. A divorce is always somebody’s fault, though most often both partners will share in at least some of the blame.