Leaving can be as easy as walking out the door, and since 1969, no-fault divorce has made that an easier option for many.
The process permits married couples to dissolve their marriages without having to prove wrongdoing, such that “irreconcilable differences,” be they real conflict or a lack of passion, constitute enough reason for one spouse to decide the legal fate of a marriage.
Fault-based divorce, the old system now available in only two-thirds of states, required one party to prove the fault of the other for abandonment, abuse, or adultery. Such claims animated tedious litigation to determine how to divide assets and whether a divorce would be granted at all, but they prevented the haphazard marital abandonment spouses wanted to avoid in the first place. No-fault divorce, too, has its relative upsides, not to be ignored given divorce’s cultural pervasion. But undying support for no-fault divorce, especially as espoused by the Democratic Party, slams the door on the young women and minority men at the center of today’s policy.
Nonetheless, the propagation of no-fault divorce as we know it began with Republican former President Ronald Reagan. As governor of California, Reagan signed the California Family Law Act of 1970, establishing that marital fault would not factor into the grounds for divorce. The state’s no-fault divorce law was the first of its kind in America and, as such, made the case for most others. Every state has come to adopt no-fault divorce since then, some even being “pure” no-fault divorce states that do not permit fault-based grounds.
Divorce rates soared in decades following, as couples took advantage of their newfound leeway. By the 1980s, the rate had plateaued and begun a steady decline. Pent-up divorce desire probably accounts for much of the immediate jump, along with the buzz around taking advantage of a popular new policy. The divorce rate in 2019 reached a 50-year low — a statistic that no-fault divorce proponents throw against concern for the state of marriage. But this low-point for divorce filing remains much higher than the rate of divorce was for many years before 1970. No-fault is, by now, a given among the standards of life, so much so that any suggestion to replace it attacks an “essential element of women’s freedom.”
Why did it take the country by storm, and what has sustained its influence?
For one, no-fault divorce answers the human impulses to be self-seeking and self-preserving, to keep finding the next best thing. People are free to be as capricious as they like under the auspices of no-fault divorce law, and even make a little money along with it. Take a wealthy but unskilled woman — she can marry a man and, if she plays her cards correctly, divorce him soon after and gain half of his income. This example is illustrative, but it displays how the policy is most fitting in a broadly undisciplined society. Still, more serious matters determine what makes it so important to advocates.
No-fault divorce offers real benefits to women in tough situations, independent of moral judgment of the decision to divorce. Abused women especially are lent some credence to their claims, whereas domestic abuse might be otherwise difficult or daunting to prove. Economists Betsey Stevenson and Justin Wolfers studied the effects of unilateral divorce, often synonymous with no-fault divorce, on these conditions. Unilateral divorce does not require consent from the other spouse, while no-fault can be unilateral or bilateral. The type most associated with negative circumstances such as abuse is unilateral. Their research found that states that adopted unilateral divorce experienced a 30% decline in domestic abuse overall, a 10% decline in the number of women murdered by a partner, and an 8% to 16% decline in female suicide. The earlier a state adopted the reform, the sooner those declines began.
Abuse claims have been valid grounds for divorce for some time, but for an abused spouse, evidence is either difficult or dangerous to procure. Battered wives might see it as more of a safety threat to file for a fault-based divorce and fail than never to start one at all. And the process itself incurs some risk for heightened violence.
No-fault divorce gives women an out, no questions asked. But instead of recognizing abuse and believing it, women must be content with feeling like their experiences are believed. Our divorce laws, as American Principles Project fellow Maggie Gallagher argued, no longer “differentiate between a woman who wants to leave an abusive husband and a man who wants to trade in an aging wife.” The gravity that proponents of no-fault divorce assign to saving abused women is on the same level as any fit of indifference that pushes a perfectly comfortable spouse to divorce. Pride of place for the vulnerable only in name, at best implicit. It is a trade-off society is willing to make to respond to a dire situation — is it worth it? There must be some way to fortify the process without surging all the way to faultless divorce. It at least raises the question of whether divorce is the unassuming, faultless mechanism it appears.
Look deeper, and it is clear that no-fault divorce has wreaked havoc on men and women through its breakdown of marriage. Brad Wilcox, professor of sociology and director of the National Marriage Project at the University of Virginia, sums it up as such: No-fault divorce “embraced the soul-mate model of married life, which prioritized the emotional welfare of adults.” Many things are as simple as a preference, and the history of divorce is certainly one of them. The great catastrophe of it lies in what has flowed downstream, to children not prioritized, more so than in objection to the sight of an “ended” marriage. Even less so to some rejection of female dignity.
Reflection on the nature of marriage still plays into that realization. A big change, perhaps the big change, came from society’s altered approach to the design of marriage. Of course, the decreasing influence of religious spheres after the ’60s and ’70s means fewer people go all-in on marriage as a covenant. But even on a secular level, marriage is easily more than a personal happiness measure. Under the “institutional model” that dominated pre-no-fault divorce, “a decent job, a well-maintained home, mutual spousal aid, child-rearing, and shared religious faith were seen almost universally as the goods that marriage and family life were intended to advance,” Wilcox wrote. Modern wisdom now holds marriage captive to the whims of the “soul-mate model,” wherein subjective, moment-to-moment happiness defines whether a marriage is serving its purpose.
If the divorce rate has decreased, it is due to the marriage rate decrease introduced by this soul-mate model. Fewer people are marrying, mostly out of fear that it will fail, and more are holding off to test their relationship by cohabitation. Not sex or closeness, not children, not financial benefits — nothing but comfort is left exclusive to marriage. As a result, marriage status divides the poor and uneducated from the well-off.
The effect is cyclical, so the great catastrophe of no-fault divorce lies in what has flowed downstream, to children not prioritized. Unstable marriages stunt children’s socioeconomic placement and emotional development, both elements of family structure that determine their chances. If they struggle academically because they do not have access to two loving parents and if they do not have any example of a viable marriage, children will achieve much less than they are capable. To add to the stratification, these poor and working-class citizens are far more likely to be black or Hispanic, meaning marriage trends toward a race divide as well.
“Children on the lower end of the economic spectrum,” Wilcox explained, are “doubly disadvantaged by the material and marital circumstances of their parents.” Their physical living conditions are affected, but so too are their prospects for stable, happy lives. We see this broadly with young girls today, no matter their economic status. Those children whose emotional welfare was not prioritized by their parents turn into anxious young women crippled by fears of abandonment. They have no hope for the success of relationships, and they avoid marriage not only because of the feminism that discourages it but because they do not think it is a safe bet.
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It seems that the women’s health benefits gained by no-fault divorce decline by generation until finally, they culminate in women and men likely to be even more at risk. If the most sincere argument for no-fault divorce is that it grants wives the freedom to escape disadvantage and abuse, we have to acknowledge that these same problems compound for children down the line. Poor, unmarried minorities are more likely to cohabitate because they are not marrying, while cohabitation is a consistent risk factor for domestic abuse. Young women are depressed, and young men are stuck. Surely these are not unconnected from a lack of parental relationship.
So which is more precious — women’s satisfaction or the children on the receiving end, many of whom grow into those same women? Men who choose to abandon their families or men who want to be able to have one? No-fault divorce may, quietly, be accomplishing the opposite of what its strongest defenses intend. Democrats keen to place women’s rights and men’s opportunities at the center of their campaigns ought to take a hard look at it.