We also work daily as a divorce coach and a divorce attorney-mediator. Our hearts went out to a woman at our recent support group meeting, who shared, “I refused to cite ‘irretrievable breakdown of my marriage’ in my complaint. I insisted my attorney cite ‘infidelity.’”
“Nobody does that anymore because of no-fault divorce laws,” the woman’s lawyer told her. Overcome with emotion, she told us she didn’t care—she wanted it written down anyway.
We get it. It’s human nature to want justice when you feel you’ve been betrayed. But we see what goes on in the family court world and understand why no-fault divorce is actually good for both parties.
In 19th-century America, fault-based divorce laws required you to prove specific grounds to get divorced. This led to all kinds of benchmarks that varied from state to state including: neglect, abandonment, adultery, intemperance, extreme cruelty and lengthy imprisonment. The process was adversarial and favored whoever had more resources.
In 1969, California Governor Ronald Reagan (R), who was divorced himself, signed California’s Family Law Act, which introduced the grounds of “irreconcilable differences.” This concept was eventually adopted by all 50 states to address the limitations and shortcomings of fault-based divorce systems. Simply put, judges don’t have time to figure out who did what to whom—and don’t care. And, if you thought divorce was already expensive, imagine the attorney’s plus investigator’s fees to prove infidelity if we went back to a fault-based framework.
Now, conservative leaders in states like Louisiana, Texas and Nebraska want to get rid of no-fault divorce, in some cases introducing bills that would transport us back to the world of fault-based battles. What many people don’t understand is this would be absolutely catastrophic—especially for women.
For me, Amy Polacko, the majority of my coaching clients are escaping a narcissistic coercive controller. This abuse already takes many forms in a divorce—including creating fictitious claims and weaponizing the legal system against women. I have no doubt that with no guardrails at all, abusers will have a better chance of making their victims ‘at fault’ in these epic clashes.
To me, Rosemarie Ferrante, vice president of the Connecticut Council for Non-Adversarial Divorce: The whole conversation of going back to that time when we didn’t have no-fault divorce, when we have made such advancements in normalizing healthy divorce, is mind-blowing.
I left litigation to found my own mediation and collaborative divorce practice, which advocates for healthier approaches to ending marriages. Two-thirds of all divorces are non-adversarial in nature—having to prove fault will only create animosity where it doesn’t need to exist.
No-fault divorce aims to provide a fair and equitable approach to marital dissolution by removing the need to assign blame or prove wrongdoing in order to obtain the divorce. This legal reform recognized the changing nature of relationships, allowing couples to separate respectfully and focus on rebuilding their lives rather than engaging in contentious legal battles.
No-fault divorce also prioritizes the well-being of children by reducing the emotional turmoil often associated with fault-based divorces, promoting a more compassionate and efficient process for families.
This positive change and the growth and acceptance of non-adversarial divorce options, like divorce mediation and collaborative divorce, have positively impacted divorcing families, and most importantly, children. The solid majority of U.S. citizens find divorce to be “morally acceptable” and the rate of divorce has decreased since the advent of no-fault divorce. As a society, we recognize that not all relationships are forever.
Important research sheds further light on no-fault’s benefits. Justin Wolfers and Betsey Stevenson, professors at the University of Michigan and Harvard-trained economists, studied the impact of no-fault divorce laws and found it decreased cases of domestic violence, suicide and spousal homicide for women. (Of course, while women experience the bulk of sexual violence, men can be victims too: One in four women and one in nine men will experience severe intimate partner physical violence, intimate partner contact sexual violence, and/or intimate partner stalking in their lifetimes.)
Some blame no-fault divorce for contributing to the breakdown of the family unit. But in a separate study, Wolfers discovered that, while more people got divorced after these new laws passed, dissolution rates leveled out after 10 years. It was simply bottled-up demand.
Wolfers said going back to fault-based divorce is dangerous. “If a husband was abusive and we were in a full-consent divorce world [requiring consent from both sides], that would mean the wife would be trapped in this situation forever. And if she was a victim of domestic abuse, that would be very terrible.”
Conservative commentator Steven Crowder has been vocal about his disdain for no-fault divorce. A video of him in a verbal exchange with his wife ordering her to be “disciplined” was leaked recently. It begs the question: Do some Republicans want to abolish no-fault divorce so they can keep their wives captive and under control? Crowder said the comments were taken out of context and went public with his divorce saying, “Since 2021 I’ve been living through what has increasingly been a horrendous divorce. … No, this was not my choice. My then wife decided that she didn’t want to be married anymore and in the state of Texas that is completely permitted.”
Yes, if a woman—or man—wants to leave a marriage they are entitled to by law. I’s simple: Divorce is a matter of social justice and equality.
Within the no-fault model, many states still permit the court to consider the reasons for the marital breakdown when determining spousal support and/or property distribution. While research solidly shows that abuse and coercive control of one parent is child abuse and should be considered in custody determinations, family courts have not caught up.
Even in our state of Connecticut where Jennifers’ Law was passed, recognizing that patterns of abuse are indicative of parental fitness, many lawyers and judges simply are not educated on this topic.
When women report domestic abuse or child abuse, they are often not believed—and can even lose custody of their children, documented in George Washington University Law professor Joan Meier’s seminal 2020 study.
Specifically, Meier found that less than half (41 percent) of women’s abuse claims are believed. And the odds that mothers’ allegations of child abuse will be credited are 2.23 times lower than that of domestic violence. Child sexual abuse is rarely accepted by the courts (15 percent) and mothers reporting a father’s abuse (of various kinds) actually lost custody in 26 percent of cases.
A growing movement is shining a light on how domestic abusers manipulate the legal system in their favor when it comes to custody, using the junk science theory that the other parent has “alienated” them from their children. In an April 2023 report, the United Nations spoke out against parental alienation as a highly gendered weapon used in court and tied to domestic, child and sexual abuse. Fault-based divorce could make this situation even worse.
Attorney Sandra Radna said she’s seen many women liberated from unhappy marriages since New York was the last state to institute no-fault divorce in 2010. “Going backwards would dramatically increase litigation because grounds for divorce would be required to be proven if the other spouse did not agree,” she said. ” The court system is already congested. Litigated divorces often take years to resolve. This would add cases to an already stressed and overcrowded system and would negatively impact all involved, including the children.”
The children—and their mothers, as Wolfers continues to drive home.
“Men’s groups often speak about no-fault divorce as a feeling that they’re ripped off because they don’t control their property,” he said. “The moment you go a step further and admit that people are no longer property, this rhetoric becomes a lot less persuasive.”