Women fear Republicans will move to overturn no-fault divorce laws

Susan Guthrie first noticed attacks on no-fault divorce gaining traction among conservative commentators in spring of 2023, recalling when right-wing YouTuber Steven Crowder “went into a rage” over the Texas no-fault divorce law that allowed his wife to leave him against his wishes.

Since then, Guthrie, a family law and mediation attorney who hosts the popular “Divorce and Beyond” podcast, has heard growing attacks on no-fault divorce from conservatives. She focused on the issue in her Monday episode – just before the simmering fears among some women exploded into view on Election Day.

In the hours after former president Donald Trump won a presidential election that heavily focused on women’s rights, women began turning to social media to vent their frustrations and worries about another rollback of women’s rights in a country that had taken a rightward shift.

Google searches for “no fault divorce” surged, particularly in red states like Mississippi, Missouri and South Dakota, while popular TikTok users urged people who were considering ending their marriage to act fast.

“If you’re unhappy in your marriage, now might be the time to act,” Leah Marie, a divorce coach, said in a TikTok video that has been viewed more than 780,000 times since Wednesday. “Protect your right to choose what is best for you and your kids before it’s taken away.”

No-fault divorce can make ending a marriage more accessible for a spouse who has fewer resources or who is being abused or controlled by a partner.

According to a widely cited 2022 study by the American Sociological Association, nearly 70% of divorces are initiated by women.

“Though many people don’t realize it, the effort to end no-fault divorce has a disproportionate effect on women,” Guthrie said. “I think we need to pay attention to it, because a lot of things we didn’t think would happen – like Roe being overturned – did happen. The voices are going to get louder with the results of this election.”

State issue with national overtones

The movement to end no-fault divorce has not been a Republican priority at the national level or on the campaign trail. Trump – who has been married three times and divorced twice – has not publicly spoken about it, though Vice President-elect JD Vance said in a 2021 speech unearthed earlier this year that people divorce too easily, shifting “spouses like they change their underwear.”

Legal scholars said concerns over losing no-fault divorce are not unfounded, citing the widespread confidence women once had about federally protected abortion rights before they were struck down in 2022 by the U.S. Supreme Court, whose conservative majority was solidified in Trump’s first term.

But experts were clear that from a practical standpoint, changes to divorce law would take place at the state level.

While there is a constitutional right to marry, there is no constitutional right to a divorce – which means divorce laws will never come before a federal court, said Margaret Ryznar, a visiting professor at Brooklyn Law School and editor emeritus of the Family Law Blog.

“The state legislatures can write or amend the divorce laws like they would any other state law,” Ryznar said. “The good news is that no federal election or presidential election can impact that directly, because there’s no federal constitutional issue.”

Reagan and the rise of no-fault divorce

Until Republican California Gov. Ronald Reagan made his state the first state to enact no-fault divorce in 1970, every state required the “fault” of either husband or wife to be established before a divorce would be granted. States designated specific grounds that would qualify for a divorce, like infidelity, extreme cruelty, abandonment or incarceration.

Reagan, a divorcé himself, signed California’s no-fault divorce law, saying it would “do much to remove the sideshow elements” of many divorce cases.

Fault-based divorce was often lengthy, expensive and acrimonious – and clogged family courts with bitter divorce cases that could drag on for years.

“Before no-fault, it’s not as if no one was divorcing; it was just a more tedious process,” Ryznar said. “It was more difficult on the courts and on the couples, proving someone was insane or impotent. Fault-only divorce leads to logistical issues that aren’t necessary.”

Since 2010, all states have permitted no-fault divorce, though the processes, time frames and requirements differ. Incompatibility or irreconcilable differences are common reasons cited in divorce cases. In the vast majority of cases, both parties do not have to agree for a marriage to be ended.

Women’s rights advocates say that no-fault divorce is also a lifeline for those stuck in abusive relationships – which disproportionately affect women – who would otherwise have to go through a costly, emotionally draining and potentially dangerous process of proving their partner’s abuse in court to obtain a divorce. A 2003 paper published by the National Bureau of Economic Research showed that female suicides declined by around 20% in the long run in states that adopted no-fault divorce, and that those states also recorded “large declines in domestic violence committed by, and against, both men and women.”

Red states consider rollback

Religious conservatives and men’s rights activists have been among the most vocal opponents of no-fault divorce, arguing that it contributes to weakening the institution of marriage, deprives children of the benefits of a two-parent household, and unfairly favors women in financial and custodial settlements.

Marcia A. Zug, who teaches family law at the Rice School of Law at the University of South Carolina, said the shifting political winds indicate efforts to end no-fault divorce “are absolutely on the table.”

“This is easier to get rid of than abortion rights,” Zug said. “Obviously, the biggest indication is if state legislatures start proposing it. Five years ago, no one was.”

Though no state has come close to rolling back no-fault divorce, several states with Republican supermajorities in their legislatures have seen bills introduced or attacks on no-fault divorce as part of state GOP party platforms.

The Nebraska GOP platform states that no-fault divorce “should be limited to situations in which the couple has no children of the marriage,” while the Texas GOP says the legislature should “rescind unilateral no-fault divorce laws.”

In Louisiana, the Republican State Central Committee last year considered a resolution to do away with no-fault divorce. An Oklahoma lawmaker introduced a bill in January to eliminate the option of no-fault divorce, while a South Dakota lawmaker has repeatedly tried since 2020 to remove irreconcilable differences as grounds for divorce.

Thus far, the bills have gained little traction; the latest bill sponsored by state Rep. Tony Randolph (R) was killed by South Dakota’s House Judiciary Committee in February by an 11-2 vote. Randolph did not respond to the Washington Post’s request for comment Thursday on whether he would introduce another bill next session.

If a state were to eliminate no-fault divorce, Zug said, there would probably be more unnecessary fraud as couples create actionable grounds for divorce, more money spent on private investigators to collect evidence of wrongdoing, and more splits where the needless acrimony negatively affects a divorcing couple’s children.

“There are all sorts of problems that come from a fault-only system,” Zug said.

Zug said attitudes toward protecting no-fault divorce laws can mirror those on abortion rights – general indifference toward something people assume they themselves will never need to access.

Zug likes to have her law students read the 1993 study “When every relationship is above average,” where people applying for marriage licenses were surveyed for their knowledge of divorce statistics, as well as their perceptions of their own relationship. Even among respondents who knew the divorce rate, most assumed their own marriage would never fail.

“When you have that kind of disconnect, people might not be as upset initially about getting rid of no-fault divorce because they think they won’t need it,” Zug said. “People may not realize how difficult fault-based divorces are.”

- – -

Emily Wax-Thibodeaux contributed to this report.