There is a push from some on the right to change no-fault divorce laws in the United States.
Commentators on the political left have responded that doing so would amount to rolling back the clock or be harmful to women.
Is there a better way forward?
I’ll be clear before jumping in that I’ve benefited from no-fault divorce. The lack of legal rigor around the process made it quick and cheap. But I believe our public policy should have more important aims than what makes my life easy. I’ve also seen firsthand how divorce harms children, women, and men. Let’s jump in.
No-Fault Divorce Is Worse For Everyone … Mostly
The best available research shows that no-fault divorce laws reduce marriage and increase divorces.
It also shows that men and women are happier, wealthier, and healthier when they’re married and that, on average, children are better off in every measurable way when raised by married parents.
No-fault divorce has made life worse for almost everyone.
So, while no-fault divorce has made life worse for almost everyone, there are two exceptions that must be addressed.
First, there is some reason to believe that the rise of no-fault divorce in the 1970s corresponded with a drop in domestic violence rates. The evidence isn’t perfect since domestic violence wasn’t measured in any systematic way until the 1990s, but there are good reasons to believe it’s true.
Secondly, in a small minority of divorce cases, children are better off. These are cases where there is severe domestic violence or addiction in a family system. Divorce still harms these children, but because those children are also being removed from a situation that is doing greater harm in other ways, they can experience an overall net positive.
Is there a way to move forward with what we’ve learned in our fifty-year experiment of no-fault divorce? Can we move toward a better model that doesn’t move us fifty years backward but does eliminate the excesses of our current approach, which is hurting nearly everyone? And can we do it without putting those benefited by the current regime at greater risk?
I think we can, but it will require a more thoughtful approach than some advocates on the right have called for, and we’re likely in a better position to accomplish it than the naysayers on the left suggest.
The New Reality of Domestic Violence
It is simply dishonest to compare what it would be like to be the victim of violence by a partner in 2024 to what it would have been like in 1965. The 1994 Violence Against Women Act has been a game-changer in reducing domestic violence.
The reason some have suggested that domestic violence went down after no-fault divorce laws went into place is because it made it easier for women to get away from those who beat them. Today, there is a robust network of shelters for women that didn’t exist at the time no-fault divorces were put into place, allowing them safety while divorces proceed.
In addition, the laws around domestic violence and the enforcement of those laws are much more robust. Women who are the victims of domestic violence do not need a quick divorce to escape a violent situation. There are plentiful tools in place to do so.
In fact, no-fault divorce laws may be harming victims of domestic violence today. No-fault divorce laws in most states simply split all household resources in two. But, the victims of domestic violence often need additional resources to get back on their feet. In a no-fault divorce system, they have limited ways to extract those resources from the person who caused the harm they need to overcome.
Even the most draconian fault-based divorce systems would not prevent battered women from getting divorced. Domestic violence is a fault that could grant a divorce. But, a system that no longer ignored fault entirely could provide victims the resources they need from their batterer to repair the damage. And while those divorces process, the shelter system the Violence Against Women Act put in place could protect women and their children from those that cause them harm.
To suggest that changing no-fault divorce would put women at the same risk of domestic violence that existed in the 1960s simply ignores the massive progress that has been made in addressing domestic violence that would remain in place.
The Legal Standard
One common rationale given when no-fault divorce was originally put into place is that couples who wanted a divorce would simply conspire together to create a rationale that the courts would accept.
States could adopt a model with multiple avenues for divorce.
But there is no reason that a new generation of marriage law needs to fit this all-or-nothing model. Rather, states could adopt a model with multiple avenues for divorce.
1) Cause-Based Divorce
State laws could reinstitute a hearty cause-based avenue that victims of domestic violence, addiction, cruelty, or infidelity could pursue. This would require the same burdens that any breach of contract claim would face in court. This would better protect those who are victims during their marriage get the support they need. Having a cause-based avenue, would not prevent pursuing a simpler path, but would be available in the worst situations.
2) Child-Protection Divorce
In cases where children are being harmed because of the degree of conflict, there could be an avenue in which judges would merely need to agree that it is likely that the children would be better off if the marriage ended—a lower standard than the fault-based divorce, but one focused on the needs of the children rather than adults.
3) Abandonment Divorce
Perhaps the most important principle in creating a new divorce regime is respecting the autonomy of everyone involved. Abandonment divorce grants this autonomy. This avenue for divorce would allow either partner to file for divorce at any time without any given reason except that they wish to abandon the marriage. If both partners wish to abandon the marriage then assets can be divided equally. But if one partner wishes to abandon the marriage and there is no fault-based reason for doing so, judges would consider the choice to abandon the “cause” of the divorce, and would consider that in the distribution of marital assets. This would incentivize both partners to try and preserve the marriage while preserving their absolute right to leave if they choose to do so.
Right now there is no legal incentive to try and save a marriage once one party is inclined to leave, this would change that underlying dynamic and give partners a legal reason to save the marriage, an outcome that in most cases is better for them, better for their children, and better for society as a whole. It would make the marriage contract respected in the law more similarly to other contracts and would remove the constant specter of divorce, which would likely result in an overall increase in marital happiness.
Deterring that kind of divorce may upset some people. But the reality is that the no-fault divorce experiment has failed. This policy has resulted in men, women, and children who are less healthy and less happy. We need to move on, but we shouldn’t move back to a 1950s-style divorce regime. No, it’s time to move forward to something better.