Some prominent conservative lawmakers and commentators are calling for an end to no-fault divorce, laws that exist in all fifty U.S. states and allow someone to end a marriage without having to prove that their spouse did something wrong, such as committing of adultery or domestic violence.
The socially conservative and often religious right-wing opponents of such divorce laws argue that the practice deprives people – especially men – of due process and harms 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 began passing a half-century ago, see the legislation and arguments for repealing them as the latest attempt to limit women’s rights — following the overturning of Roe v Wade and the introduction of abortion bans across the country – saying that without such protections the country would return to an earlier era when women were often trapped in abusive marriages.
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“No-fault divorce is critical to the ability, especially the ability of women, to exercise autonomy in their own relationships and in their own lives,” said Denise Lieberman, an adjunct professor at Washington University School of Law in St. Louis, specialized in policy on gender, sexuality and sexual violence.
Before 1969, when then-divorced California Republican Governor Ronald Reagan passed the nation’s first no-fault divorce law, women, who are more likely to experience violence from an intimate partner, were often forced to remain in a marriage . If they couldn’t prove their husband was abusive or convince him to grant a divorce, they wouldn’t be able to take assets out of the marriage or remarry, according to a study in the Quarterly Journal of Economics.
States across America gradually followed suit, passing similar laws allowing unilateral divorce until 2010, when New York became the last state to adopt the practice.
Between 1976 and 1985, states that passed the laws saw a roughly 30% decline in domestic violence against men and women; the number of women killed by an intimate partner fell by 10%; and the suicide rate among women fell by 8 to 16%.
Without such laws, “it’s hard to prove anything in court that affects a family because you don’t have witnesses,” said Kimberly Wehle, a professor at the University of Baltimore law school. “It is very difficult to obtain evidence that proves the abuse of children. How do you do it? Do you put your children in the stands?”
Conservative commentators like Matt WalshSteven Crowder and lawmakers such as Republican Sen. J.D. Vance of Ohio have argued that the laws are unfair to men and harm society by leading to more divorces.
The divorce rate in the United States has risen significantly from 1960, when it was 9.2 per 1,000 married women, to 22.6 in 1980. But by 2022, the rate had fallen to 14.5.
Regarding the increase in divorce rates, Vance said in 2021, “One of the big tricks that I think the sexual revolution played on the American population” is the idea that “these marriages were fundamentally, you know, maybe even violent, but certainly they were unhappy, and if we get rid of them and make it easier for people to change partners, just like they change their underwear, people will be happier in the long run.”
Beverly Willett, an author and attorney, argues that no-fault unilateral divorce is also unconstitutional because it violates a person’s 14th Amendment right to due process.
The defendant “has absolutely no way to say, ‘Wait a minute.’ I don’t want a divorce, and I don’t think there are grounds for divorce. I would like to be heard. I would like to call witnesses,” said Willett, who went through a divorce she didn’t want because she thought her marriage could be saved. “I believed in my vows” and “didn’t want to give up.”
But Willett’s argument rests on the idea that “women are property or that somehow men’s freedom is limited by not allowing them to remain in a marriage with someone who does not want to marry,” said Wehle, who also wrote about it in the Atlantic Ocean newspaper. “I don’t agree with the idea that women are somehow the property interests of their husbands. That is a mysterious relic of law that has no place in modern society.”
Willett responded to Wehle’s criticism by writing that “no one has proposed a return to outdated laws of the 18th and 19th centuries. Since then, significant reforms have been introduced that protect women and ensure their equality in family court.”
Arguing that no-fault divorce reduces domestic violence, Willett points to data showing that most domestic violence occurs between unmarried couples and says regardless, “in any contract, in any lawsuit, you still have to uphold the Constitution ”.
But without such laws, victims of domestic violence would then have to navigate a legal system that can be time-consuming, “highly hostile and very costly” as the plaintiff often has to pay for child care and transportation, said Marium Durrani, vice president of the court . policy chair of the National Domestic Violence Hotline.
“Any additional barrier we add to the ease of legal proceedings is, quite frankly, a nightmare and a huge burden on survivors,” Durrani said. ‘I’m not trying to be an alarmist, but it could increase the number of deaths [if] a survivor of domestic violence must prove in divorce proceedings that he/she is being abused.”
Still, Lieberman doesn’t think Republicans will succeed in their efforts to make it harder for people to divorce.
‘I really believe that train has left the station. I mean, we’ve had no-fault divorce for 50 years now,” Lieberman said. But “I didn’t think the Supreme Court would overturn Roe v Wade, which we had for 50 years, so I guess we’ll see.”
