No-Fault Divorce is Under Fire From Conservatives. Here’s Why.

Ben Carson made headlines earlier this month upon the release of his new book, which calls for lawmakers to put a stop to no-fault divorce in the U.S.

“For the sake of families, we should enact legislation to remove or radically reduce incidences of no-fault divorce,” the former cabinet member for Donald Trump writes in “The Perilous Fight: Overcoming Our Culture’s War on the American Family,” which hit shelves on May 14.

“The reason this matters is that no-fault divorce legally allows marriages to end much more quickly than in previous decades,” he continues. “When there are relatively few legal or financial consequences connected with divorce, it’s natural for people to gravitate toward that option when their marriage hits a rough patch. What those people often don’t consider, however, is the harm — both present and future — inflicted on their children once a divorce is finalized.”

Carson is the latest in a growing list of conservative politicians who have spoken out against no-fault divorce.

House Speaker Mike Johnson (R-La.) said in a 2016 sermon that no-fault divorce laws were among the cultural shifts that gave rise to “a completely amoral society” in which young people feel compelled to “go into their schoolhouse and open fire on their classmates.”

Sen. Tom Cotton (R-Ark.) decried the rise of no-fault divorce laws in a 1997 editorial he wrote for the Harvard Crimson while he was a student at Harvard University. Sen. J.D. Vance (R-Ohio) has also expressed support for making divorces harder to obtain.

In recent years, conservative state politicians have pushed for legislative changes that would roll back no-fault divorce in Oklahoma, Texas, South Dakota and beyond.

But what exactly does “no-fault divorce” mean, and why is it emerging as a hot-button issue in U.S. politics? Below, legal experts break down its history and the reasons people have such strong opinions.

“A no-fault divorce usually means either spouse can file a divorce petition without the need to show the other spouse did something wrong,” said B. Robert Farzad, managing partner at Farzad & Ochoa Family Law Attorneys. “Using California as an example, either spouse can file for divorce based simply on irreconcilable differences. Neither spouse needs to show anything other than that to start the divorce process or obtain the dissolution of the marriage.”

This stands in contrast to fault divorce, which generally requires one spouse to prove in court that the other engaged in some sort of misconduct, like adultery, cruelty, abandonment or substance abuse.

“Essentially, one party typically blames the other for the demise of their marriage,” said divorce attorney Nicole Sodoma, who emphasized that specific state laws can vary significantly. “While all states have the option of filing for no-fault divorces, less than 20 states exclusively recognize them, meaning the court will prohibit parties to allege fault grounds in order to get divorced.”

California was the first state to legalize no-fault divorce when then-Gov. Ronald Reagan signed the Family Law Act of 1969 into law. Reagan, who would go on to become the nation’s first divorced president, said in a statement at the time:

Divorce is a tragic thing and while we cannot eliminate it or its causes through legislation, this bill will do much to remove the sideshow elements of many divorce cases. 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.

Over the next four decades, other states would pass similar laws, until New York became the final state to adopt a no-fault divorce statute in 2010.

“Fault divorce was incredibly expensive and time-consuming, and the damage done to the individuals by protracted litigation over the reasons for the failed marriage made avoiding the question of fault better for everyone involved,” said Marilyn Chinitz, a partner in the matrimonial and family law practice at the law firm Blank Rome.

Prior to no-fault divorce, even couples who mutually wanted to end their marriage had to prove some kind of wrongdoing in court. As a result, many would create fake scenarios ― some even going so far as to hire a good-looking woman to get “caught” with an allegedly cheating husband.

In 1934, the New York Mirror published an article called “I Was the ‘Unknown Blonde’ in 100 New York Divorces!” which profiled a woman named Dorothy Jarvis. A professional “other woman,” Jarvis would collect $50 to $100 to be photographed in compromising situations with married men.

Although this sort of collusion was technically illegal, it was so commonplace that a 1934 New York Times article about perjury declared it was “most flagrant” in divorce courts.

For couples with less dramatic flair, migratory divorce was also a popular option. Spouses who wanted to end their marriage would move together to a state with less-restrictive divorce laws, allowing for a quicker and easier split.

Reno, Nevada was known as the “Divorce Capital of the World” for much of the 20th century due to the state’s lax requirements for divorce, coupled with the city’s efficient courthouse process and infrastructure that catered to married folks seeking singledom.

Obtaining a divorce under fault-based laws was not only logistically complicated, but it could also lead to punitive outcomes.

“Prior to the implementation of the no-fault statute, the question of fault would result in a different allocation of the assets and debts in a divorce, especially marital support or maintenance,” Chinitz said.

As a result, the party deemed responsible for the breakup of the marriage could be ordered to pay more in alimony due to their actions ― “almost like a penalty,” she explained. No-fault laws have helped change this.

“Thankfully, when making decisions about the division of assets and debts, support, and even custody, courts have moved away from the concept of punishment,” Chinitz said.

The shift away from punitive practices in divorce is one of many benefits to no-fault divorce touted by lawyers like Chinitz. She emphasized that this approach allows couples to end their marriage with greater privacy and less conflict.

“There’s no reason for the court to hear the dirty laundry that takes place between couples and inflame unhappy people,” Chinitz said. “The divorce process should be focused on reducing conflict between the parties, not requiring them to provide evidence or statements outlining the bad behavior of their spouse.”

Requiring a legal battle to prove fault unnecessarily lengthens the divorce process and makes it even more contentious, she argued.

“There is no benefit to keeping unhappy people married. It is toxic and causes people to remain in unhealthy relationships, which has a deleterious effect on every member of the family, especially the children,” Chinitz added. “Why spend years and thousands of dollars when getting a divorce to prove that someone is accountable for the breakdown of the marriage? Isn’t it enough to simply state that the marriage has irretrievably broken down and that it is important for both sides to move forward with the divorce process?”

Reducing the time, money and stress involved in divorce lessens animosity and allows for more amicable splits.

“Since many spouses also have children, that means the children need not see their parents go through an emotionally charged court process that unavoidably trickles down into the family’s day-to-day life,” Farzad said.

He noted that no-fault divorce also keeps the courts from getting clogged with contested, fault-based proceedings. And in contrast to those 20th century stories of fabricated affairs and collusion, the no-fault system doesn’t incentivize otherwise honest people to lie.

“Societal norms and attitudes toward divorce have changed over time, allowing for a greater emphasis on individual happiness and autonomy,” Sodoma said. “No-fault divorces align more closely with these contemporary values by allowing couples to end their marriages without assigning blame.”

Many believe no-fault divorce promotes gender equality because it allows women ― who’ve historically had fewer rights in marriage ― to be on equal footing with men in the dissolution of marriage, she added.

No-fault divorce is particularly significant for victims of domestic violence, who may be less likely to seek divorce or report their abuse when faced with the prospect of a drawn-out legal battle, in which they’d need to prove fault and could face intimidation and retaliation from their partner.

“By enabling abused women to exit marriages without the burden of detailing their abuse in court, no-fault divorce laws offer a vital avenue for escape and safety,” Sodoma said.

A 2004 paper from economists Betsey Stevenson and Justin Wolvers reported a 30% decrease in domestic violence for both men and women in states that passed no-fault divorce laws ― as well as an 8-16% decline in female suicides and 10% drop in the number of women murdered by their partners.

Although the courts have shifted away from punitive measures for the spouse considered to be at fault in a divorce, wrongful conduct like physical abuse can still be a factor in resolving certain issues.

In California, for example, if one spouse commits domestic violence and is criminally convicted, “that abusive spouse may also suffer significant financial consequences in the divorce, including on issues such as spousal support, division of retirement benefits, attorney’s fees and more,” Farzad said.

And while no-fault divorces are generally more straightforward, the process varies by state. Some even require a separation period of one year or longer before a judge can grant the divorce.

It’s been more than 50 years since California became the first state to allow no-fault divorce, but the its legal status is increasingly at risk.

In January, newly-elected Oklahoma state Sen. Dusty Deevers (R) introduced a bill that would effectively abolish no-fault divorce by no longer permitting spouses to file for divorce on the grounds of incompatibility.

“I want to see no-fault divorce come back to at-fault in divorce and even public shaming for those who are at fault in divorce,” Deevers declared months earlier, during his campaign.

Every year since 2020, GOP South Dakota state Rep. Tony Randolph has put forward a bill to amend the list of valid grounds for divorce, specifically to remove “irreconcilable differences” (which 97.4% of divorcing couples in South Dakota cite as the cause of their split).

“Rescinding unilateral no-fault divorce laws would be a terrible mistake, and it is alarming to even hear the rumblings of a platform seeking to rescind no-fault divorce laws,” Chinitz said. “Repealing no-fault divorce laws does not restore fundamental fairness in our family court and could have a devastating impact on the lives of so many forced to stay in unhappy relationships.”

Along with the overturning of Roe v. Wade, Chinitz said she believes the movement against no-fault divorce laws is another example of a dangerous trend in which politicians roll back freedoms and legal protections previously afforded to women.

“The motivation behind this push is fueled by a desire to rewrite society to fit within conservative faith-based family values, where one man and one woman marry, have children, and remain married until death,” Samantha Chapman, the advocacy manager for the ACLU of South Dakota, wrote on the organization’s website. “While this is a lifepath that many people choose, it’s also a vision that leaves little room for the complexities we face in our ever-changing world and the various ways these complexities impact our lives. This simply isn’t the way things shake out for everyone.”

In tandem with some conservatives’ efforts against no-fault divorce is their promotion of “covenant marriage” ― a type of union that is only legally recognized in Arizona, Arkansas and Louisiana. Modeled after religious covenants, this type of marriage requires premarital counseling and makes it significantly more difficult for couples to get divorced.

Johnson and his wife Kelly were one of the first couples to choose a covenant marriage after Louisiana officially recognized these unions in 1997. Although Cotton’s Harvard Crimson piece from that year included predictions that “many states” would enact similar measures and covenant marriages would “soon account for half of all new marriages in Louisiana,” the practice has remained very limited.

Data from the Louisiana Department of Health and Hospitals found that of the 373,068 marriages performed in Louisiana between 2000 and 2010, just 1 percent were covenant marriages, according to AL.com.

“Because so few people have chosen covenant marriage in Louisiana, it seems like an unpopular idea,” Johnson told a reporter back in 2001. “It’s not unpopular — it’s just unknown. Once the message is out there, a whole lot more people will choose it.”

Perhaps the limited reach of covenant marriage explains why proponents now seem more focused on placing restrictions on traditional unions by ending no-fault divorce.

“Conservative politicians sometimes advocate making a divorce harder or at least creating more legal hurdles before filing or obtaining one,” Farzad said. “But a perspective like that sometimes misses the point. It assumes that people who go through divorces are doing something they really want to do ― as if they have no respect for the institution of marriage ― versus doing something they feel they must do.”

He emphasized that keeping a domestic violence victim in an abusive relationship simply because they decided to enter into a legal contract in the past does nothing to “preserve the sanctity of marriage.”

“Keeping a spouse being coercively, financially controlled in a marriage where the spouse fears leaving the other spouse and essentially becoming homeless and losing custody of their children is a societal wrong we have significantly corrected by abolishing fault-based divorce statutes,” Farzad added. “It doesn’t make sense to go backwards, and neither religion nor politics justifies it.”