End of the Blame Game… or not? No-fault divorce is under threat—here’s why that matters, especially to women

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Until the late 1960s, to get a divorce in the United States, you had to have “grounds”— a reason to end your marriage that was considered legally valid. You needed to prove, with evidence, that your spouse had breached the marital contract with wrongdoing such as adultery, cruelty, or abandonment.

Today, no-fault divorce laws enable anyone who wants to end their marriage to do so. There’s no need to blame anyone or prove any offense. If one partner wants out of the relationship, they can get a divorce. Although the terminology varies slightly state by state, the person who files needs to declare that there are irreconcilable differences or an Irremediable or irretrievable breakdown of the marriage.

A brief history of divorce in the United States

In England, before the Revolutionary War, it was nearly impossible to get a divorce—doing so required a Private Act of Parliament. But here, beginning in the 17th century, in the Massachusetts Puritan settlement, colonies and states began establishing grounds for divorce.

In an era when women enjoyed few rights, divorce was one way of exercising independence and autonomy.

However, divorce could be a humiliating process. Proving marital misconduct meant airing your intimate matters in a public court. Conflict, drama, blame, and the whiff of scandal often caused a media frenzy around 19th-century divorce proceedings, especially when well-known parties were involved.

Further, historically, women were at a significant disadvantage in fault-based divorce. Many were homemakers with little financial/earning power who could not afford an attorney. Those who did manage to file faced a demeaning uphill battle: proving their husbands’ abuse, philandering, or desertion within a male-dominated legal system that generally tipped the scales in favor of men.

In 1969, under Governor Ronald Reagan, California became the first state to offer no-fault divorce; New York was the last to pass it in 2010. Today, all 50 states and the District of Columbia offer some form of no-fault divorce. Seventeen states, including California, are considered actual no-fault divorce states, meaning couples may only file for no-fault divorce—the court cannot and will not consider “grounds.”

No-fault divorce made ending a marriage easier, less expensive, less stressful, and more private, and eliminating the need to prove wrongdoing freed many women to leave unhappy, hopeless, toxic, or dangerous relationships. And that had a broader positive social impact—studies show a correlation between no-fault divorce and decreased rates of domestic abuse, as well as a significant reduction in female suicide. Not only can women leave abusive husbands more quickly, but potential abusers, research suggests, are deterred by knowing they can be left.

Along the way, some women’s advocacy groups have argued that there are drawbacks to no-fault divorce for women—for example, that proving fault added valuable leverage for obtaining more significant awards of spousal/child support. But on balance, no-fault divorce was a crucial turning point in women’s empowerment.

Threats to no-fault divorce

Now, no-fault divorce is facing backlash from specific political interests. Conservative provocateur/YouTube host Steven Crowder publicly blamed his recent divorce on Texas’ no-fault laws. There’s been a surge in inflammatory rhetoric concerning a “rising” divorce rate (it’s been decreasing overall since 2000), a lack of respect for the institution of marriage, the breakdown of the American family, and general societal decay. Plus, recent efforts in several red state legislatures to overturn no-fault divorce.

It’s unclear how far it will go, but it’s telling to view the current attack on no-fault divorce in the larger context of rolling back women’s rights. Given the strong evidence that no-fault divorce resulted in significant harm reduction and helped many women leave unsustainable circumstances, it’s sobering to consider what a return to the blame game would mean.

Although you don’t legally need an attorney to file for divorce—or to prove any reason other than irreconcilable differences—divorce is still a complex, contentious, emotionally loaded process. The skilled and caring family lawyers at SFLG are experienced in handling even the most challenging and high-conflict cases. When you’ve made the difficult decision to end your marriage—unilaterally or in agreement with your spouse—we will help you navigate the dissolution process from start to finish, whether you can reach a settlement or need to litigate.

By Debra Schoenberg

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