PROS AND CONS OF NO-FAULT DIVORCE

 

Background: As a young conservative Christian, I was always taught that divorce was a sin, and that no-fault divorce ran counter to the teachings of the Bible, promoting moral decay, undermining family values, and showing a lack of respect for the sanctity of marriage. But now, having been a Christian divorce recovery leader for nearly 30 years, I’ve got a slightly different understanding of the pros and cons.

  

6 PROS and CONS of No-fault Divorce: Destroying Family Values, or Saving Lives?

 

First, a bit of history: The first state in the U.S. to adopt modern no-fault divorce laws was California in 1969, signed into law by then-governor Ronald Reagan and put into effect in 1970. A few other states already had similar laws, but California’s bold move by the movie-star-turned-politician grabbed the headlines.

Ronald Reagan stated in September 1969: “I believe it is a step towards removing the acrimony and bitterness between a couple that is harmful not only to their children but also to society as a whole.”

There is no federal divorce law in the U.S.; each state sets its own rules, which can differ significantly. In general, no-fault divorce is the opposite of “at-fault” divorce—in a no-fault case, no-one must be pinned with blame for ending the marriage publicly. In an at-fault divorce, all statements must be corroborated with evidence that meets a legal standard, and one spouse must be found to be at-fault and the other innocent.

At-fault divorces were famous for ugly angry finger-pointing in order to finally get the judge and jury to grant the divorce: Who cheated, when, where, with whom? Who made threats or insults? Who terrified the kids? Who squandered the rent and grocery money? Where is the evidence?  This intense conflict in court burned hours and racked up thousands of dollars of legal fees, not to mention traumatizing the children.

No-fault laws bypass this. They use legal terms like “irreconcilable differences” or “marital breakdown.”   But they all mean the same thing. This approach doesn’t imply there weren’t serious grounds; it simply avoids a public courtroom dispute over fault and allows for more privacy. It allows a spouse to file for divorce without airing the dirty laundry in public.

In most states, no-fault divorce does not require the other spouse’s consent; it can be a unilateral move.

 

Cons: Reasons No-Fault Divorce Is Bad

 

1. No-fault divorce enables one spouse to end the marriage for any reason.

   No-fault divorce allows one person to walk away from the marriage for any reason, because they don’t need serious grounds and evidence to back it up. That doesn’t sit well with those who care about fairness, social stability, and sacredness of marriage. Jesus allowed divorce for adultery, and the apostle Paul allowed it for abandonment by an unbeliever, but for many Christians these are the only valid reasons. And divorces for these and other serious issues, such as violence, are viewed as uncommon.

2. Divorce is tough—sometimes even devastating—to the financially dependent spouse and children who get discarded.

   The first year, these “rejected” spouses go through a lot of anger at the betrayal and unfairness. Household income usually drops that first year. They struggle with the avalanche of transitions. Now they must deal with the shock, accept reality, get a better job (or any job), support traumatized children, find childcare, and locate a new place to live. But these rejected spouses usually feel better within two or three years. And their children usually turn out fine, on average.

One of the leading researchers on divorce, Dr. Mavis Hetherington, wrote,

“In the early period, the ‘left’ spouses were the most unhappy and resentful, but by the end of the second year, there were few differences between those left and the ‘leavers.’ … “[In] the second year there was an upsurge in emotional wellbeing as people began to adapt to their new life situation.”^[1]

 

Pros: Reasons No-Fault Divorce Is Good

 

1. Lowering the suicide, domestic violence, and murder rates.

   In states that adopted unilateral no-fault divorce, researchers discovered that over the course of time, the suicide rate for wives dropped around 8-16%. The domestic violence rate by and against both men and women dropped 30%, and the homicide rate for women murdered by intimates dropped by 10%.^[2]

No-fault divorce reduced the suicide rate, domestic violence rate, and murder rate.

These are very significant decreases, and they point to the fact that no-fault divorce meant that people who needed to leave their marriages were finally able to escape and find safety.

In many cases, because of no-fault divorce, people were able to get out of a dangerous marriage before it could turn violent, or they left a dangerous marriage faster than they would have been able to otherwise. In some cases, people filing for no-fault divorce did so to leave a dangerous marriage, even when they didn’t have enough evidence of danger to convince a judge.

All these things resulted in fewer cases of domestic violence, fewer deaths at the hands of abusive spouses, and fewer cases of death by suicide.

The reality is that 1 in 4 highly religious marriages has experienced abuse, according to a 2019 study by the pro-family, pro-marriage Institute for Family Studies. Women (and some men) are so abused and in despair that they turn to suicidal thoughts. When divorce is almost impossible to achieve, cannot be initiated unless the abusive spouse agrees to it (which they rarely will), or comes with so much stigma and loss of social standing (even resulting in being shunned or ostracized from the only community they have ever known) that the victim cannot envision any good future for themselves either inside or out of their abusive marriage, sometimes suicide seems like their only way out.

No-fault divorce gives distressed and miserable people a way to end their marriage rather than their life.

 

2. Giving the victims of abuse and betrayal the ability to get out without their spouse’s consent.

   The truth is that a lot of marriages are not ended by the unfaithful spouse, but by the long-suffering spouse who has prayed for years, but can no longer stand passively and watch the damage it is doing to their kids.

 

Many divorces are initiated by abuse victims who have endured cheating, domestic violence, chronic emotional abuse, family-crushing addictions, depression, and suicidal thoughts—people who had to get out. The abuser would never agree to a divorce. They would do everything to stonewall and block it and fight it in court. And under the old divorce laws, they did this successfully, trapping the victim because they didn’t have the money or enough evidence to prevail in court.

Often those who neglect, abuse, or betray their marriage want to have their cake and eat it, too, enjoying the benefit of having a responsible spouse who takes care of the household and kids while they do their own thing. No-fault divorce allows the betrayed spouse to leave unilaterally, without any consent from the betrayer, abuser, or addict.

3. Getting safe, even if you’re not wealthy.

   In the past, before no-fault divorce, the legal process took a long time, had a lot of barriers in some states, high standards of evidence, and was expensive. People who weren’t wealthy often stayed in miserable, violent marriages because they had no realistic choice. Some didn’t have the money for an attorney, so they walked out the door and disappeared.

 

Wealthy individuals who were being abused, but lived in a state that allowed divorce for adultery only, could travel to another state that allowed divorce for violence, failure to provide, or desertion. Rich people could afford to establish residency and file for divorce there and then return home when it was final.

Or sometimes wealthy people would stay in their state and pay to have evidence fabricated and lie in court. (For example, in New York, couples who wanted to divorce had fake photos taken showing adultery because that was the only legal reason for divorce in the state.)^[3]

 

But poorer people were stuck. They simply could not afford a divorce that required them to move to another state or pay for court fees, expensive attorneys, private investigators, and long court battles. Unilateral no-fault divorce tilted the scale so that people who needed a life-saving divorce, especially low- and middle-income people, could escape bad marriages, too.^[4]

4. Reducing public humiliation.

Contrary to popular belief, many people with serious reasons for divorce prefer to keep their matters private. While they may want to clear their name, they often don’t wish to publicly disclose their spouse’s misdeeds—particularly if their financial support depends on that spouse—or share details of the mistreatment and personal pain they endured with strangers. They seek to avoid ridicule and protect themselves and their children from unnecessary humiliation.

No one wants to be the subject of gossip or feel judged by others. No-fault divorce allows them to get out without pointing fingers, and without enduring public judgment and further emotional turmoil.^[5]

 

5. Keeping the courts from being bogged down.

   Many Christians especially want to clear their name and make sure the world knows they were not at fault for this divorce. But this adds significant legal costs and requires more resources in the court system, a system that already has hundreds of thousands of people utilizing it every year. For those who object to big government, this is a genuine issue. In fact, about 1 in 3 states no longer allow people to file an at-fault divorce (one that casts the blame on the other party).^[6]

 

This is why you cannot tell if a person had a life-saving divorce just based on their having obtained a no-fault divorce. (Note: No-fault divorces are not always faster than fault divorces. A handful of states will waive their waiting period for those who file a fault divorce, so if you have evidence, it’s important to discuss these options with your attorney.)

 

6. It hasn’t increased divorce over the long run.

After the jump in the divorce rate from 1970-1982, due to pent-up demand. The years 1978-1982 saw the highest divorce rate in U.S. history. Then divorce rate dropped over the next 55 years. As of 2010, all states now have no-fault divorce, yet the divorce rate continues to drop. As of 2022, the divorce rate is lower than it was in 1970, before the no-fault laws went into effect.

 

No-fault divorce has saved lives, without increasing divorce rates.

 

Some people will point out that the marriage rate has dropped too, so of course we have fewer divorces. They will say that more people are cohabiting—which is also true.

But the divorce rate in this illustration, and in the graph pictured below, is a percentage of all married people, plus recently divorced people, not a percentage of the whole population of the U.S., so it is a valid comparison.

It means that, even if more people were married per year back then, more were divorcing back then, too.

 

Chart: Divorce Rate from 1970 to 2022^[7]

 

Divorce Rate Is Declining

 

Contrary to what you may have heard from news media, family organizations, and conservative think tanks, the divorce rate is lower than it was 55 years ago. And it appears to be continuing downward according to demographers and pro-family, pro-marriage think tanks.

 

The good news is that fewer young people are divorcing. They are pulling the divorce rate down. The baby boomers, as a group, still have a high divorce rate, but that will be less of a factor as that generation passes. Millennials have comparatively lower divorce rates. And that trend will likely continue.

 

On average, millennials (unlike their parents) are waiting until they are older and have more life experience (and sometimes more education) before tying the knot. They are being more selective when considering mates. Because of this type of caution and careful consideration on their part, researchers expect the divorce rate to continue to decline.^[8]

Other Articles on No-Fault Divorce

• Here’s a paper written by an analyst and an economist at the Federal Reserve about no-fault divorce.
• Click here to see which states may be changing their no-fault divorce laws.

 

 

^[1] E. Mavis Hetherington and John Kelly, For Better or For Worse (New York: WW Norton & Company, 2002), 50-51.

^[2] Betsey Stevenson and Justin Wolfers, “Bargaining In the Shadow of the Law: Divorce Laws and Family Distress,” The Quarterly Journal of Economics 121, no. 1 (Feb. 2006): 267, 268, 286.

^[3] Nelson Blake, Road to Reno (New York: Macmillan, 1962), 119.

^[4] Philip Cohen, “Hell in a Handbasket, or the Democratization of Divorce?” Family Inequality (11/27/2003), accessed 10/1/19, https://familyinequality.wordpress.com/2013/11/27/handbasket-democratization/. Although I’ve read a lot about the plight of poor spouses who could not afford a divorce, and even seen it in my own family tree, this article clarified it as an issue of fairness.

^[5] By the way, The United States is one of the few countries that has unilateral no-fault divorce (meaning a person can divorce without the consent of their spouse). In 2022, after a long hard fight, the United Kingdom got the right to no-fault divorce.

^[6] Beverly Bird, “Which States Are No-Fault States,” Legalzoom.com, accessed 10/16/19, https://info.legalzoom.com/states-nofault-divorce-states-20400.html.

^[7] Loo, J.  (2023). Divorce rate in the U.S.: Geographic variation, 2022. Family Profiles, FP-23-24. Bowling Green, OH: National Center for Family & Marriage Research. https://doi.org/10.25035/ncfmr/fp-23-24 accessed 10/26/2024. Method of calculation: The divorce rate = [(number of women divorced in the past 12 months) / (number of women divorced in the past 12 months + number of currently married women)] x 1000.

^[8] Cohen, The Coming Divorce Decline.