The War on No-Fault Divorce

Virginia has come a long way since requiring individuals seeking a divorce to petition the General Assembly for approval by a two-thirds majority. “No-Fault Divorce” legislation swept the country after Ronald Reagan signed the Family Law Act in 1969 as Governor of California, virtually eliminating fault-based divorce nationwide (New York only recently legalized no-fault divorce in 2010). Before no-fault divorce was legalized, one party had to prove to a judge that the other party was at fault, meaning he or she had committed certain grievous acts that irreparably harmed the marriage, such as adultery or being convicted of a felony. Today, neither party needs to prove fault to be granted a divorce.

Despite the progress made with the Supreme Court decision striking down the Defense of Marriage Act last year, social conservatives have not ended their battle to “strengthen” marriage. Scott Keyes recently wrote a piece for the Washington Post arguing social conservatives are doing this by quietly waging war on divorce. Keyes argues, “Any public policy that encourages the creation and persistence of married straight couples therefore merits support; any policy that deviates, including same-sex marriage or no-fault divorce, is hostile to the institution.”[i] In recent years, lawmakers in more than a dozen states have introduced bills imposing longer waiting periods before a divorce is granted, mandating counseling courses or limiting the reasons a couple can formally split. North Carolina has a bill under construction that would double the waiting period to two years and require couples to receive conflict-resolution counseling.

Marriage historian Stephanie Coontz argues that “roadblocks” to divorce like extended waiting periods and mandatory classes “could easily exacerbate the situation and harm kids.”[ii] Most states have a 2-3 month waiting period after the date of separation before a couple may be granted a divorce. In Virginia, if couples mutually agree they no longer want to live together as husband and wife and that there is no hope for reconciliation, they can get a no-fault divorce after one year of separation without interruption and without cohabitation. If there are no children from the marriage and the couple has created a Property Settlement Agreement, the waiting period is reduced to 6 months. Other southern states require longer waiting periods similar to Virginia, including Louisiana, North Carolina, and South Carolina.

The conservative push to “protect” marriage is nothing new and is gaining momentum in states where Republican lawmakers have regularly introduced bills to restrict divorce. In March, Conservative Ralph Reed of the Faith and Freedom Coalition went so far as to correlate the divorce revolution of the 70’s and 80’s (marriage rates were nearly cut in half from 1940-1988[iii]) and the current rates of poverty. Amanda Marcotte of Slate.com emphatically disagrees:

The reason that divorced women are more likely to live in poverty is not because they were all housewives with no marketable skills whose husbands abandoned them. It’s because wages are so low, especially for women, that many households need two adults working full time to make ends meet. The real solution to women’s problems is better jobs with better wages. Women shouldn’t have to pick between living in poverty and living with a man who makes them unhappy, and men shouldn’t have to stay in a marriage to fix income inequality.[iv]

Marcotte’s comments shed light on an often overlooked consequence of “divorce reform”: making divorce more difficult harms women the most. Waiting periods and mandatory classes provide an abusive partner more control.

Keyes argues that no-fault divorce has been a success and references a 2003 Stanford study that detailed the benefits in states that had legalized such divorces. Domestic violence dropped by a third in just 10 years, the number of husbands convicted of murdering their wives fell by 10 percent, and the number of women committing suicide declined between 11 and 19 percent. Conservatives utilize the argument that children of divorced parents experience worse life outcomes like diminished math and social skills. On the other hand, Stanford sociologist Michael Rosenfeld mentions the level of conflict in a marriage and its effect on children. He suggests there is no way to test definitively whether children of divorced parents were already more likely to experience such outcomes as a result of the high-conflict environment they were exposed to before their parents separated.

Rather than put up roadblocks to divorce in order to prevent marriage, why not ensure that people who are getting married are more compatible? Libertarian Megan McArdle argues, “[W]hen you make it harder to exit, you also make people reluctant to enter. If we try to strengthen marriage by clamping down on divorce, we may find that more and more people simply refuse to get married in the first place.”

 

[i] Scott Keyes, “Conservatives aren’t just fighting same-sex marriage. They’re also trying to stop divorce,” The Washington Post, April 11, 2014, http://www.washingtonpost.com/opinions/conservatives-arent-just-fighting-same-sex-marriage-theyre-also-trying-to-stop-divorce/2014/04/11/5f649bd6-bf48-11e3-bcec-b71ee10e9bc3_story.html?Post+generic=%3Ftid%3Dsm_twitter_washingtonpost, May 1, 2014.

[ii] Stephanie Coontz, Marriage, A History (New York: Penguin, 2006).

[iii] Patricia H. Shiono and Linda Sandham Quinn, “Epidemiology of Divorce,” The Future of Children, Spring 1994, 16.

[iv] Amanda Marcotte, “Actually, Ralph Reed, It Should Be Harder to Fire Your Secretary Than to Divorce Your Wife,” Slate, http://www.slate.com/blogs/xx_factor/2014/03/18/ralph_reed_blames_income_inequality_on_no_fault_divorce.html

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