Today we’ll look at an article and an interview with a law professor about the efforts of right-wing extremists to take us back to the days before no-fault divorce gave people more freedom to end a marriage.

First, let’s start with this article by Alison Lefkovitz in Time.

The Right Aims to Turn Back the Clock on American Divorce Law

Though the proposal is not included in the Project 2025 policy book, eliminating no-fault divorce is one of the goals of many of the advisors to the project — an initiative put together by groups like the right-wing Heritage Foundation, to lay out an agenda for a second Donald Trump Presidency. And this is no isolated proposal. Newly minted Republican Vice Presidential nominee J.D. Vance has called no-fault divorce “one of the great tricks that I think the sexual revolution pulled on the American populace.”

What many conservatives want is a return to the “fault divorce” legal system, in which marriage was fundamentally binding unless one spouse — and only one — violated anything on a list of “faults” articulated by states in hodgepodge fashion. Judges had the power to deny divorces for multiple reasons, leaving people who wanted no part of marriage stuck together.

Yet, modern conservatives don’t just want to resurrect this system — they want to make it even worse. The fault divorce system assumed men to be breadwinners who were required to continue providing support for their wives if they were at fault for the divorce. It was a part of a social contract in which wives had to provide household labor, ranging from childcare to sex, in exchange for financial security (which after a divorce meant alimony).

But conservatives only want to bring back fault divorce — not the alimony regime that existed with it. This selectivity would make the system even more dangerous for the “traditional” homemakers that the right also demands.

The fault divorce regime was a colonial legal concept that loosened slightly with the arrival of the American Revolution, on the basis that wives should be able to free themselves from husbands who had wronged them. Over the next several decades, individual states added new faults, and each one had a different set of rules.

In some states, for example, the only violation was adultery. Other states had a long list of faults, such as abandonment, cruelty, and drunkenness. Often the law required a witness to prove that spouse’s fault; in Illinois, for example, a witness had to observe a husband striking his wife twice for the wife to qualify for a divorce for cruelty.

If both spouses had violated marriage laws, judges sometimes left them married, even if neither wanted to be. A judge could also deny a divorce to a couple if they were thought to be working together to manufacture a fault. Such a decision meant that each partner could not remarry. Nor could they deny their spouse access to their bank accounts, their home, or their bodies.

Some couples could get around such rules by going to a state with a reputation as a “divorce mill,” with many faults that justified a divorce and lax residence requirements. In the 19th century, Indiana had this reputation, and in the 20th century, Nevada took its place.

Since the fault divorce system was built around men as breadwinners, courts forced husbands to remain responsible for providing for their wives if they were at fault in a divorce. Husbands had to give their former wives alimony either until the women remarried or died. In practice, judges only ordered middle-class husbands to pay alimony, but it was a real and continuing obligation for many men.

This system largely remained intact until the late 1960s, when as the common narrative goes, the activism of second-wave feminists led states to start adopting no-fault divorce. The historical reality, however, is far more complex. Legal purists at the American Bar Foundation who worried about collusion undermining the rule of law and early men’s rights activists like the American Divorce Association for Men contributed just as significantly to the movement towards no-fault divorce.

The first blow struck against the fault divorce regime came in California in 1969 and other states quickly followed suit. New York was the extreme latecomer — taking until 2010 to join in. The new system took the decision to divorce away from the judge and bestowed it on the spouse who wanted to separate.

But that wasn’t the only thing that changed as the system evolved. Lawmakers quietly remade not only how couples exited a marriage — but also what they owed each other after. Over the course of the 1970s, legislators came to believe that it made no sense to mandate that husbands have a lifelong commitment to being a breadwinner. In debates, legislators articulated various reasons for questioning this concept under the new divorce regime, including fault no longer dictating separations and women’s increasing participation in the workforce. Some legislators also voiced blatant anti-feminist frustration.

The result was that many legislatures not only enacted no-fault divorce, but also made alimony temporary — two to five years in most cases. Judges, too, slowly began to diminish what husbands owed in child support as they held more mothers increasingly responsible for a larger portion of childcare expenses. These changes increased poverty rates for women and children.

Therein lies one of the ironies of conservatives’ push to abandon no-fault divorce. While they argue that restoring this system would protect the family, they only want to selectively resurrect it. They aren’t, for instance, also calling for a return to the companion policy of life-long alimony. If anything, there are calls to roll back alimony even further.

Conservatives praise the era of male breadwinning, but they want to make it elective rather than the legal duty that it was in the period they claim was marriage’s golden age.

The desire of conservatives to resurrect only parts of this regime is no accident. Their vision for marriage laws would give men privileges they once had, but not the attendant obligations. Wives would have obligations, but few privileges.

This vision for marriage also includes a push by parts of the conservative legal movement, including Supreme Court Justice Clarence Thomas, to unwind substantive due process — the legal foundation for the right to marry, which helped to legalize interracial and gay marriage.

But the restoration of fault divorce alongside the collapse of the right to marry would be an even worse marital regime than the one that, for decades, trapped women in abusive marriages, held women to higher expectations than their husbands, and excluded single people and interracial and queer couples from a vast set of rights. The original fault divorce era was not a golden era for marriage. But the conservative movement proposes something even worse. They are calling for the strictures of the past but none of the structures that required Americans to hold each other up.

Source: The Right Aims to Turn Back the Clock on American Divorce Law (Time, July 23, 2024).

Next is this interview by Ayesha Rascoe at National Public Radio with a family-law professor.

Conservatives in Red States Turn Their Attention to Ending No-Fault Divorce Laws

After decades of no-fault divorce law, some conservatives want to make it harder to end marriages on the basis of irreconcilable differences. NPR’s Ayesha Rascoe talks with Joanna Grossman of Southern Methodist University about the push-back.

AYESHA RASCOE, HOST:

Some conservatives, including high-profile commentators and Republican state lawmakers, have set their sights on ending or restricting no-fault divorce laws. These laws are on the books in all 50 states. No-fault divorce allows anyone who wants to end their marriage to do so without blaming their spouse for doing anything wrong, like adultery or domestic abuse. But critics of no-fault divorce say it undermines the sanctity of marriage and hurts men. We’re joined now by Joanna Grossman. She’s a law professor who specializes in family law at Southern Methodist University’s Dedman School of Law. Professor Grossman, welcome to the program.

JOANNA GROSSMAN: Thank you for having me.

RASCOE: So can you start by reminding our listeners of the history of no-fault divorce?

GROSSMAN: Sure. So for most of history in the U.S., we had something called fault-based divorce – right? – the opposite. And that was basically the state decided whether a marriage was bad enough to justify a divorce. Different states had different grounds, sometimes, including things like cruelty or excessive drinking or imprisonment. But the key to that system was the person who wanted the divorce had to themselves be innocent? They had to accuse and prove that the other spouse had committed something on the list? And that all went by the wayside starting with California in 1969, when states realized that that was really a very artificial way of thinking about marital breakdown and also really inconsistent with our ideas of what happy marriage is.

RASCOE: Well, what happened after no-fault divorce went into effect?

GROSSMAN: What we saw was a decrease in female suicide. We saw a decrease in domestic abuse of wives. We saw a decrease in homicide of women by intimate partners. And we also saw generally, people feeling more able to control their lives – right? – that they were not stuck in unhappy marriages. So we did see an increase in the divorce rate initially, but since then, the divorce rate has pretty steadily declined.

RASCOE: Well, so some Republicans in a few red states, including Louisiana, Texas, Nebraska and Oklahoma, want to end or limit no-fault divorce in their states. If they were able to do that, what would it mean for people in those states who want to get divorced?

GROSSMAN: Yeah, so luckily, because we had fault-based divorce for so long, we have good information about what happens in that system, right? So a lot of people would simply cheat to get divorces that the law says they’re not entitled to. So two people who wanted to get divorced would simply agree, right? You’re going to say I committed adultery, and then we’ll get a divorce on grounds of adultery. We’ll see the rise of divorce tourism, which we saw in that earlier era. Most states would not get rid of no-fault, so we’ll see people traveling to establish residency in those easier states. And then we will see some people who are just stuck – right? where the inability to get divorced is used as a way to trap people in bad marriages. And unfortunately, what we also know is that will mostly be women.

RASCOE: Well, and we should clarify that this has not been formally adopted by the GOP. But there are leaders in the party who’ve come out against no-fault divorce, including Speaker of the House Mike Johnson, Ohio Senator J.D. Vance. Talk to me about this sudden focus on the specific statute in family law.

GROSSMAN: I think it’s really part of the same kind of culture wars that are being waged by the GOP both at the state level and at the federal level, right? So the same people who are cheering the repeal of Roe v. Wade and the elimination of protection for abortion rights, those are the same people who want to get rid of no-fault divorce. And a lot of these things are tied together by just sort of nostalgia for some kind of traditional conservative values that they think were in place in the ’50s and ’60s. But what they really like about that simpler time is the patriarchal component.

RASCOE: Well, so in your view, do you think that this effort by some conservatives to get rid of no-fault divorce – do you think it has legs, or is this more of a talking point?

GROSSMAN: I think it’s hard to say. I think five years ago, I would have said, there’s no way one of these bills would pass because it’s sort of too ridiculous and doesn’t make any sense. But I’ve seen things pass in the past couple of years that I would have classified as kind of equally implausible. I think this is less likely to pass because it would really wreak havoc on the family court system, right? It would add just tremendous cost and delays to an average divorce, and that will affect not only the parties, but also judges and lawyers and the entire court system. So I do think there’ll be some institutional pushback to this effort that we wouldn’t see with some of the other kind of culture war issues.

RASCOE: That’s Joanna Grossman. She is a law professor at Southern Methodist University’s Dedman School of Law. Thank you so much for speaking with us.

GROSSMAN: Oh, my pleasure.

Source: Conservatives in Red States Turn Their Attention to Ending No-Fault Divorce Laws (National Public Radio, July 7, 2024).

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