The issues of no-fault divorce, a target of JD Vance and conservatives
Sen. JD Vance (Ohio), the Republican vice-presidential candidate, has spoken out against no-fault divorce. Luke Sharrett for The Washington Post
With his elevation to Republican vice-presidential nominee, Sen. JD Vance’s provocative views about divorce—that people do it too easily, shifting “spouses like they change their underwear”—have turned the spotlight on a bubbling movement to end what is known as no-fault divorce.
“It’s one of the great tricks that I think the sexual revolution pulled on the American populace,” Vance (Ohio) said three years ago during a speech at a Christian high school in California. He blamed “a lot of very, very real family dysfunction” on couples no longer sticking out their unions. “Well, OK, these marriages were fundamentally, you know, they were maybe even violent, but certainly they were unhappy.”
Such sentiments are reflected in the positions of certain men’s rights groups, right-wing bloggers, conservative religious leaders and GOP lawmakers in some Southern and Midwestern states. Their goal is to eliminate or at least narrow laws that allow couples to divorce without having to prove one person was to blame.
Here’s what to know about the issues.
Why did no-fault divorce laws arise?
California was the first state to adopt no-fault divorce when Gov. Ronald Reagan (R), himself divorced, signed it into law in 1969. Until then, every state required the “fault” of either husband or wife to be established before a divorce would be granted, an often lengthy, expensive and acrimonious process. Reagan alluded to that bitterness as he inked the bill, saying it would “do much to remove the sideshow elements” of many divorce cases.
“There was always more demand for divorce than the law allowed, and this led to a variety of workarounds. Most divorces were collusive, but everyone involved pretended they weren’t. The wife would file the petition, the husband would not appear, and the wife would put on fabricated evidence to support the claim of fault,” said Joanna L. Grossman, a family law expert who has extensively studied state regulation of marriage. “This background is necessary to understand the no-fault revolution.”
In some states, a divorce was only granted if adultery was proved. Other states required abandonment, cruelty, drunkenness or imprisonment—and a witness. Cases would drag on, sometimes for years.
Since 2010, all states have permitted no-fault divorce, though the processes, time frames and requirements differ. (New York was the last to pass a law, despite opposition from the Catholic Church.) Incompatibility or irreconcilable differences are common reasons cited. In the vast majority of cases, both parties do not have to agree for a marriage to be ended.
Who wants to do away with these laws?
Gene Mills leads Louisiana Family Forum, a nonprofit providing “a voice for traditional families” in a state where the Republican State Central Committee last year considered a resolution to do away with no-fault divorce. Mills agrees with Vance that people give up too quickly on their marriages.
“We’re supporting bringing in therapy, church support, community support when it comes to a dissolution of marriage,” he said, “especially when there are children involved. It’s not healthy for them.”
Indeed, the effort to reverse course on these laws often has religious overtones. Some proponents instead advocate “covenant marriages,” which are legally sanctioned in Louisiana, Arkansas and Arizona. Couples entering into such marriages agree to premarital counseling and sign a declaration of their intent to be together for the rest of their lives. They cannot divorce without first seeking marital counseling; to obtain a legal separation, they must live apart for up to two years.
And only certain reasons are grounds for divorce.
Among the voices of support is House Speaker Mike Johnson (R-La.), who is from Shreveport, La. In 1999, not long after his state became the first to pass a law recognizing covenant marriage, he and his wife joined in one. In 2016, he delivered a sermon that linked no-fault divorce to the “undermining of the foundations of religion and morality.”
Johnson’s office declined to comment for this story.
Yet others have different motivations. Some men’s rights groups, for example, say no-fault divorce can put men at a disadvantage legally and deny them due process. It has become “a disaster, mostly for men, since most breakups are initiated by women,” the National Center for Men maintains.
Grossman, a law professor at Southern Methodist University, takes issue with many of the critics. “In a less charitable light, they want to curtail women’s autonomy,” she said. “The outspoken people on the subject will sometimes say specifically that women should not be able to leave marriages just because they want to.”
What do women’s rights groups say?
Reagan called his decision to allow divorce for any reason one of the worst mistakes of his political life. The nation’s divorce rate soared from 20 percent in 1950 to 50 percent in the 1970s.
But other powerful social currents were transforming America at the same time. More women were working outside the home, and they were finding greater financial independence that would give them more ability to leave an unhappy marriage.
“Without access to unilateral divorce,” noted a 2006 study in the Quarterly Journal of Economics, “people ‘trapped’ in a bad marriage had few choices. While they could leave the marriage without being granted a divorce, they would not be able to take any assets from the marriage and would be unable to remarry.”
For Denise Lieberman, an adjunct professor at Washington University’s law school in St. Louis, the conversations around ending no-fault divorce are really about controlling women. “Many of the same groups who fought to make abortion illegal and support gun rights without any checks are now trying to do this,” she said. “They are all connected. If a woman can’t leave a marriage, she’s trapped.”
In the age of no-fault divorce, data shows, rates of partner violence and female suicide have fallen. Ending no-fault divorce will give abusers another way to stay in control, women’s advocates say.
“Imagine trying to leave someone who has attacked and betrayed you,” said Brooke Axtell, director of development and strategic partnerships at the SAFE Alliance, a Texas organization that helps survivors of domestic and sexual violence. “Then they have to endure an intense legal battle with the person who violated them, so they can finally be free and gain access to their money and property.”
Fault-based divorce favors the person with the most power and money because they can afford to draw out the legal process, she said. “Survivors do not have this luxury. They are usually financially vulnerable. They are traumatized and their lives are at stake.”
Could ending no-fault divorce have unintended consequences?
Grossman, among others, worries that overturning no-fault divorce could further clog the family court system - which is “already at its breaking point.”
“Divorces can still be lengthy proceedings now, but the time is spent fighting about children and money,” she said Wednesday. “Those issues will not go away, so requiring proof of fault would just add another thing to fight about.”
The potential impact on divorce itself is unclear. The U.S. divorce rate has dropped steadily since the turn of the century, though experts point to the falling marriage rate as one of the reasons. In 2000, federal statistics show, the divorce rate was 4.0 per 1,000 population. In 2022, the most recent year for which data is available, the rate was 2.4.
