The Impact of No-Fault Divorce

Marriage has long been considered a binding, serious contract of love, happiness, and commitment between two individuals who promise to cherish and forgive one another.  Couples committed to work out conflicts and adapt to changes in circumstances and personality.  Divorce was seen as a very significant event that often brought pain and unhappiness to many.  Yet attitudes about marriage have dramatically changed.  Many now consider marriage as an institution easily entered into and requiring little commitment and adaptation.  These changing attitudes about marriage also brought about changes in divorce.  Divorce morphed into a common quick-fix band-aid that was sought after any significant trial forced the spouses to rely on their lack of commitment.  These dramatically different divorce laws—called the No-Fault Revolution—have negatively affected so many facets of society.

No-Fault Revolution

History shows that the law regarding grounds for divorce revolved around fault-based policies.  The law required fault such as infidelity, abuse, or drunkenness to be present in one or both spouses in order to grant a divorce.  These laws were created to signify the seriousness of divorce the magnitude of commitment marriage expected from each spouse.  Marriage was not to be entered into lightly and was intended to be a lasting union bringing happiness to each spouse and their children. 

However, starting in 1969, states began adopting no-fault divorce laws by the will and pressure of elite lawyers and scholars.  In California, where no-fault was first adopted, a small group of lawyers was commissioned to create the laws.  This commission held no public hearings and certainly did not have the backing of an unknowing public.  Shortly before the governor left office, the commission presented their no-fault laws and they were rapidly signed into law in 1969.[1] Other states quickly followed suit.  However in Utah, the no-fault divorce law was not adopted until 1987, taking the form of an “irreconcilable differences” clause as grounds for seeking a divorce.[2] Spouses could then seek for divorce under a law that advocated a lack of commitment to work out conflicts.  As Maggie Gallagher described the no-fault revolution, “It was not an anguished public, chained by marriage vows that demanded divorce as a right. The revolution was made by the determined whine of lawyers, judges, psychiatrists, marriage counselors, academics, and goo-goo-eyed reformers who objected to, of all things, the amount of hypocrisy contained in the law.”[3] In less than twenty years, the no-fault revolution engulfed every state, beginning many foreseen and unforeseen complications—an increase in the number of divorces, heavy economic burdens, innocent children at the center of heated custody battles, and the loss of justice in the American justice system.

Policy Implications

Increase in Divorce

Although many proponents of no-fault divorce believe it has not caused an increase in the number of divorces, research has actually suggested otherwise.  A 1999 study published in the Journal of Marriage and Family performed some statistical tests which illustrated that the divorce rates in 25 out of 32 states had exceeded the projected increase prior to no-fault laws.[4] In other words, since the adoption of no-fault laws, divorce rates were higher in the majority of the states studied then they were predicted to be if the historical fault-based laws had remained in place.  A more recent review of literature noted that while estimates vary across different studies, “the best evidence suggests no-fault divorce increases the divorce rate on the order of 10 percent.”[5] Despite some proponents’ insistence that no-fault laws have not driven up the divorce rate, numerous studies have proven the exact opposite—no-fault laws have actually increased the number of divorces.

Economic Costs

Stemming from the basic premise that the divorce rate has increased as a result of no-fault laws, the economic costs of divorce have increased tremendously for women and society as a whole.  Divorced women are most often left to head a household with one or more dependent children.  These female-headed households suffer tremendously with income.  After reading one 2000 study that researched the effects of divorce on female-headed households, one scholar commented, “Nearly half (48.8%) of all female-headed households have incomes in the lowest quintile, compared with only 12.7% of married-couple families. More than one-third of female-headed households (35.8%) are poor.”[6] Even a defender of no-fault, Riane Tennenhaus, acknowledges that “the elimination of guilt and innocence has also taken away from divorce proceedings some of the weapons lawyers traditionally used to get better economic settlements for wives.”[7] These stark statistics show that an increased number of divorces places a heavy financial burden on an increased number of female-headed households.

Besides the economic concerns for individuals, an increased number of divorces places a heavy financial load upon the taxpaying public.  For the state of Utah, a study sponsored by the Institute for American Values reported the total taxpayer costs of family fragmentation as $276,000,000.[8] The study concluded that even the slightest decrease in the divorce rate could help the taxpayers’ burden immensely.

Children as Targets

One of the worst implications of no-fault divorce laws involves the children in such proceedings.  The harsh debate during divorce proceedings that used to stem around which spouse was at fault, has now turned into a heated custody battle.  Children are thrown into the minefield as targets of their parents’ disagreements, and desires to control and manipulate one other.  The children, rather than the parents, become the highest and most severely affected casualties of no-fault divorce laws.  Some proponents of no-fault divorce laws argue that children are resilient; however, research has proven that negative effects stemming from being the targets of a heated divorce causes severe problems lasting far into adulthood.[9] No-fault divorce laws have created custody disputes that scar children for life.

Loss of Justice in the Justice System

Possibly the most far reaching and severest implication of no-fault divorce laws is the loss of justice in the American justice system.  By taking fault out of the divorce proceedings, the concepts of innocence and guilt have been removed from the court.  A spouse who may have committed wrongdoing may seek a no-fault divorce where his or her betrayal has no weight in the courtroom.  An innocent spouse is then denied redress for wrongs committed against him or her because innocence and guilt are no longer at play in no-fault divorces.  In this way, the whole concept of justice is lost in no-fault divorce proceedings.  For example, a wife who marries for opportunity may then divorce a husband at will and be entitled to half of his material gains during the marriage.  The innocent husband is then often left with child support responsibilities from a divorce that he never wanted.  As Justice Richard Neely of the West Virginia Supreme Court has remarked in The Divorce Decision, “A blameless father often emerges from divorce courts with all the financial responsibilities of marriage and none of its emotional or economic rewards.”   Also, if one spouse seeks a no-fault divorce, the other spouse has no legal way to contest or ask for time to work out conflicts.  The no-fault law favors the spouse seeking the divorce, while creating a forced divorce for the other spouse.  The no-fault law has therefore, taken justice out of the divorce proceedings for so many Americans.

Call for Reform

No-fault divorce laws were created by an elite group of policymakers and lawyers who never guessed at the enormity of negative implications such laws have had.  No-fault laws have increased the divorce rate, created undue economic burdens on individuals and society, turned the innocent children into targets, and undermined the justice in the justice system.  Although fault-based divorce laws caused some problems of their own, the no-fault divorce laws have proven not to be the solution.  Reform must be made or the effects of no-fault divorce will continue to increase.  Citizens, lawyers, and policymakers must all combine to reform the divorce laws.

[1]Herbert Jacob, Silent Revolution: The Transformation of Divorce Law in the United States (Chicago: University of Chicago Press, 1988)

[2] Laws of Utah 1987, chap. 106.

[3] Maggie Gallagher, The Abolition of Marriage (Washington, D.C.: Regnery Publishing 1996), 146-147.

[4]Joseph Lee Rodgers, Paul A. Nakonezny, and Robert D. Shull, “Did No-Fault Divorce Legislation Matter?  Definitely Yes and Sometimes No,” Journal of Marriage and the Family 61(1999): 803-809.

[5] Douglas W. Allen & Maggie Gallagher, “Does Divorce Law Affect the Divorce Rate?”, Institute for Marriage and Public Policy Research Brief No. 1, July 2007.

[6]Karen Seccombe, “Families in Poverty in the 1990s: Trends, Causes, Consequences, and Lessons Learned,” Journal of Marriage and the Family 62(2000): 1094-1113.

[7]Qtd. in Riane T. Eisler, Dissolution: No-Fault Divorce, Marriage, and the Future of Women (New York: McGraw-Hill, 1977), 5.

[8]Institute for American Values, et al., The Taxpayer Costs of Divorce and Unwed Childbearing, April 15, 2008.

[9]Judith S. Wallerstein and Sandra Blakeslee, Second Chances: Men, Women, and Children a Decade After Divorce (New York: Ticknor & Fields, 1989), xv, 297-300, 307.

2 Responses to “Nada Breanna Plooster Honorable Mention undergraduate”

  1. Ellen Fluckiger says:

    An insightful, well-written paper. I’m very proud of your opinions, you support, and your conviction of marriage. Who raised you???? By the way, I love you.


  2. Marri Edlady says:

    I was just chatting to my older siss about this yesterday. I also saw something on this over at the ulta web site. Isnt it unusual how these things pop up in bunches. to be direct, it is kind of bloodcurdling.