What Is No-Fault Divorce And Why Is It Under Scrutiny?

Divorce isn’t easy. The process of dividing property, consulting with legal professionals, working out custody arrangements and adjusting to non married life takes a toll – even when it goes well. The Holmes-Rahe Stress scale of stressful life events ranks divorce second only to experiencing the death of a spouse. Nevertheless, divorce could be worse. At least the process isn’t predicated on character assassination.

Today, every state in America has no-fault divorce, where either spouse can start a divorce without having to prove blame or fault. But before no-fault, divorce needed to cast a spouse as a villain. While courts had some discretion, the norm was at-fault divorces, which required spouses to prove wrongdoing occurred in the marriage as grounds for the divorce. Acceptable grounds varied by state but commonly included infidelity, bigamy, insanity, desertion, and cruelty. Basically, one spouse had to publicly accuse the other of behavior that warranted being banished from society.

“You had to say the other person did something that made you want to get out of the marriage,” says Jennifer Brandt, a family lawyer practicing in New Jersey and Pennsylvania. “From the jump, divorces were contentious because you were accusing somebody of something.”

The at-fault divorce process favored parties with greater resources and women were rarely the ones with greater resources. It was a punishing gauntlet for domestic violence victims who had to prove their abuse occurred. The National Association of Women Lawyers (NAWL) viewed divorce reform as their “greatest project,” and created a proposed uniform no-fault divorce law in 1947.

The disparity between state divorce law led to “migratory divorce,” where divorce-seekers traveled to states with favorable divorce statutes and short residency requirements. Nevada, a state with a six weeks residency requirement, became a quickie divorce Mecca. Reno billed itself as “the divorce capital of the world” and launched a booming divorce tourism industry that catered to prospective divorcees, offering “divorce ranches'' for waiting out residency requirements, plentiful divorce attorneys, on-call witnesses to testify residency requirements were met, and a range of services for unaccompanied women, a rarity in early 20th century America.

Even as American women gained more economic and political power in the mid-20th century, divorce remained locked into the at-fault model. At times, unhappy married couples would collude and agree to false grounds. For example, when the successful actress Jane Wyman filed for divorce in 1948, she cited “mental cruelty” as grounds for divorce but remained on good terms with her ex husband until his death.

Decades later, Wyman’s ex-husband, Ronald Reagan, would change everything about American divorce by signing the nation’s first no-fault divorce law as California's governor.

The Rise of Irreconcilable Differences

By instituting no-fault divorce, the California Family Law Act of 1970 made the dispassionate, catch-all phrase “irreconcilable differences” the state’s only grounds for divorce. By citing “irreconcilable differences,'' neither spouse needs to be the bad guy and it’s far more possible for divorces to display minimal acrimony and conclude with as amicable a separation as possible.

“No-fault divorce is based on the simple premise that the marriage is irreparably broken, and there is no need to assign blame,” says Sandra Radna, New York family law attorney and author of You’re Getting Divorced...Now What?. “No-fault divorce was instituted to simplify and speed up the divorce process.“

By 1974, 45 states had adopted no-fault divorce laws. In 2010, when New York became the 50th state to adopt it, no-fault divorce became the default method of divorce in family courts across America. For example, South Dakota courts still hear grounds for divorce but divorcing couples nevertheless cited irreconcilable differences in over 97% of divorce cases in 2021. Courts in California and other states can consider issues like spousal abuse when calculating support or child custody, abuse and other accusations should not have an effect on other aspects of divorce cases.

“While spouses may have reasons for initiating the divorce, they do not have any bearing on the process,” says California family law attorney Athar Khan.

Through simplifying the process and eliminating the need to assign blame, no-fault divorce benefits all parties involved in the divorce. “It makes the divorce process less acrimonious and limits hostility from spilling over and harming children,” adds New Jersey family law attorney Rajeh Saadeh.

No fault divorce is unilateral, meaning either spouse can initiate a divorce, which Radna notes, makes it easier for women to escape dangerous relationships or gain negotiating power during the relationship.

“It is particularly beneficial to women in unhappy or abusive marriages, as abuse is often hidden and unreported, making it difficult to prove,” she says.

There’s proof that women are taking advantage of unilateral divorce and benefiting from it. A 2015 sociological survey found that women initiated divorce over two-thirds of the time while a 2004 National Burea of Economic Research study of states adopting no-fault divorce found that female suicides, reports of domestic violence and murder of women dropped significantly following adoption of no-fault divorce.

No-Fault Divorce In The Crosshairs

Social conservative groups, media figures, and personalities argue that no-fault harms the institution of marriage and leads to instability for children. And one of those critics recently became one of the most powerful politicians in America.

Recently elected Speaker of the House Mike Johnson decried no fault in a 2016 sermon, linking no-fault divorce, along with teaching evolution and legalized abortion, to school shootings. The Louisiana congressman also demonstrated his opposition to no-fault divorce through entering a covenant marriage, a religion-based marriage contract wherein divorce is more difficult to attain. Covenant marriages are legal in only three states and, despite the congressman’s advocacy, were only used by 1% of Louisianian newlyweds between 2000 and 2010.

While Johnson hasn’t proposed legislation related to divorce or made recent public statements about changing divorce, several fringe conservative media personalities, emboldened by the overturning of Roe v. Wade, have made full-throated endorsements for ending no-fault divorce, including Michael Knowles, Tim Pool, and Steven Crowder, the latter of whom was caught berating his pregnant wife on leaked security footage. At the same time, official GOP party platforms in states including Texas and Nebraska call for ending no-fault divorce while the Louisiana Republican party is reportedly considering eliminating no-fault divorce.

It’s hard to gauge the threat level no fault divorce truly faces. There’s internet chatter which doesn’t amount to much and party platforms which are tantamount to wishlists (the Texas GOP party platform also includes a secession referendum, for example). Politicians aren’t foregrounding the end of no-fault divorce in their campaigns, at least not yet, and Johnson’s website doesn’t even mention divorce. And rolling back divorce rights sure seems like political poison when you consider the demographics of divorce. Over a third of American divorces involve people 50 years or older and people that age remain the most reliable voting bloc in the entire American electorate. You’d have to be the dumbest politician alive to tell them you’re making them stay married.