No-fault divorce is under fire by conservative politicians. In their view, it made divorce too easily obtained and that has undermined the institution of marriage. In 2021, J. D. Vance, the newly nominated Republican vice-presidential candidate, claimed that the no-fault provision made “shifting spouses as easy as changing their underwear”, destroying the sanctity of marriage.
But the picture is not so simple. The debate around no-fault divorce laws is complex and multifaceted.
California pioneered the change by adopting the first no-fault divorce law on January 1, 1970. This significant shift in family law allowed couples to petition for divorce without assigning blame to either party. The movement spread across the country, and by October 15, 2010, no-fault divorce became legal in all 50 U.S. states.
When it became law, no-fault divorce was seen as a means of allowing individuals to exit marriages that are irretrievably broken, without the need for long legal battles over assigning blame—and incidentally avoiding gut-wrenching effects on children by eliminating the need for fabricating, and publicly airing, damaging details and brutal recriminations during the divorce proceedings.
Professor Joanna Grossman of the Dedman School of Law at Southern Methodist University notes that when it was instituted, cases of domestic violence and homicides against women decreased.
But in the increasingly conservative political climate of today supporters of its abolition contend that by making the process of ending a marriage too easy, it does not encourage couples to work through their differences.
However, this intensifying cry against the no-fault divorce is part of a more widespread recent trend– GOP politicians are relentlessly whittling away women’s rights and many among them believe that “no-fault” disproportionately affects men in divorce proceedings and custody battles. These politicians claim that it is inherently unfair to men, since a full 69% of divorces are initiated by women and in their view, men are thereby being deprived of due process. Yet Grossman points out that historically, from the first divorce that was granted in the 18th century, women have been in the majority to petition for the dissolution of marriage.
Social conservatives often support policies that they believe will strengthen family values and promote stability within the family unit, and women’s rights are being increasingly identified as issues supported by the left.
Recent rulings on abortion are a case in point. The overturning of Roe v. Wade by the U.S. Supreme Court marked a significant shift in American jurisprudence and reproductive rights. This landmark decision, which had stood for nearly half a century, was reversed on June 24, 2022, ending the federal constitutional protection for abortion.
The ruling has created a ripple effect, allowing individual states to implement their own abortion laws, some with draconian effects, even creating a life and death crisis for many women. Some states had “trigger laws” in place, which were designed to ban abortion immediately upon the reversal of Roe v. Wade. The Supreme Court’s conservative majority, bolstered by recent appointments by then-president Donald Trump, played a pivotal role in this decision. This underscores the enduring impact of judicial appointments on the interpretation of the Constitution.
Professor Grossman notes however, that claims like those being put forth by conservative politicians are part of the ongoing culture wars, and the attack against no-fault divorce is simply another way for them to capitalize on their often-repeated talking points–their support of traditional values, family and marriage–despite the fact that there is little proof that no-fault divorce is weakening an institution that has been declining for decades. According to Grossman, their hidden agenda is not so much centered on the no-fault divorce, but as part of a wider strategy, “they are really interested in having men have more control again”, of returning to a “more patriarchal society.”
In the final analysis, Grossman does not foresee a decline in divorce if no-fault is struck down; people will still get divorces, they will “just have to jump through more hoops.”
