No-Fault Divorce: After 40 Years, Debate about the Ease of No-Fault Still Rages

Whether you call it no-fault divorce or unilateral divorce, the debate about how easy it should be to end a marriage is entering its fourth decade with no end in sight. Some argue that divorce doesn’t need to tie up the already overburdened courts and if people are not happy in a relationship or feel like they are in potential danger, they should be able to get out.

Others, like activist Maggie Gallagher, who heads a conservative Washington think tank dedicated to reforming state marriage laws to make divorce more difficult to obtain, say no one wants people to stay in abusive relationships, but the ease with which one spouse can end a marriage without the consent of the other is a destructive force in society.

“The reason (the debate) continues is because people aren’t satisfied with the high rate of divorce or with a totally unilateral divorce system where one person can end a divorce as fast as the courts can process it,” she said recently.

There isn’t yet any kind of agreement on what might be a better system. A lot of people are worried what changing the laws would mean. I mean the Bar Association, for example, is worried what that might mean and they are very influential in the state legislatures, and yet 40 years after no fault, we’re still debating it because people are not happy with what the divorce system does or with the amount of divorce we have.


The divorce rate in the United States has been steadily climbing for decades and topped 55 percent in the mid-1990s before recently settling back down to where it is now, remaining steady at about 50 percent. According to most government statistics, that translates to about one million new divorces each year.

The first state to adopt laws that allowed one party to end a marriage without the consent of the other was Oklahoma in 1953, but then in 1970, California spawned a wave of similar legislation that is now almost universal in the United States.

There is still much disagreement on the definition of no-fault divorce. Some states that allow unilateral ending of divorces but restrict the allocation of assets are considered no-fault states. It seems fairly clear, however, that New York, remains as the only state left that doesn’t allow for some sort of unrestricted divorce. In New York, there is still a formal one-year separation period required, but that may end soon as well. Legislation to delete that restriction was before the New York legislature this past summer but did not pass. It will likely be re-introduced again next year.


So while it would seem that the battle lines over the letters of the laws have stabilized on the side of some sort of no-fault divorce, there are several new fronts in the debate that are emerging and likely to take a prominent role going forward.

One is what effect same-sex marriage will have on the debate as states begin to respond to the growing call for some sort of legal recognition of same-sex unions. Experts believe it will be some time though before the effects can be seen or measured.The other is more immediate and surrounds the debate about the long-term effects the rising divorce rate has had on children and society in general.

Since the rise in adoption of no-fault laws blossomed in the 1970s, there have been thousands of studies published surrounding the effects of divorce on children, and one thing has become fairly clear from those results: there is ample evidence to say that a high divorce rate can and does have an effect on children and thus society through higher poverty rates, more crime, economic instability and increased instances of mental health problems, among other things.

Dr. Barbara Dafoe Whitehead, a national expert on marriage and co-director of the research-centered Marriage Project at Rutgers University, argued in her 1997 book, The Divorce Culture, that the cultural revolution of the 1960s and the growing emphasis on feeling good about oneself led to a wide-spread belief that divorce was not related to society and divorcing parents felt little or no obligation to consider the effects of their separation like they once did in previous eras such as pre-World War II.

In 2004, Dafoe Whitehead testified before a senate committee on children and families that it was clear that healthy marriages and stable relationships were a necessary ingredient for healthy children and could have positive influences on society, but also questioned whether it was the proper role of government to interfere with a couple pondering whether to end their relationship. “Marriage is not a magic bullet solution to problems of poverty, disadvantage, crime, and discrimination,” she said.

Gallagher, however, is adamant that the private and public sectors must do whatever they can to encourage long-term, healthy marriages. “My overriding concern is how do we create a society where more children, rather than fewer, are being raised by their own, married parents, in decent, loving families and marriages,” Gallagher said. “That’s the goal. I have a basic American belief that when you see something that’s causing so much pain and suffering to children and causing problems for communities and taxpayers there’s got to be a way to do it better.”


There is new research that was published in July by Dr. Brian D’Onofrio, a psychology professor at Indiana University that does offer more evidence that divorce itself — and not genetic predispositions such as depression — play a large role in the development of children and can have specific effects on the behavior of children as they develop into adults. His study indicates that children of divorced parents are twice as likely to become divorced themselves, and that continues to pass on behavioral challenges from generation to generation.

From a practical standpoint, the research suggests that either reducing divorce or the consequences of divorce will decrease the number of conduct problems, drug and alcohol abuse problems, and divorces in offspring.

Of course for people like Vic, a 58-year-old woman from Virginia whose husband announced suddenly that he was leaving her after 32 years of marriage, all the research in the world can’t change her mind on the effects of divorce. Vic’s parents, by the way, divorced when she was a child. “I don’t mean to say that people should stay married if it is awful, but it’s so easy these days to get divorced. In people’s minds, it’s an acceptable solution. I think it does affect society because there is a cynicism that goes along with it. My niece told me once, ‘My first marriage is going to be for practice.’ Now that’s cynical. She’s only 22.”

“I was married for over half my life and that meant nothing as far as the law was concerned. I tried my best to slow the process down, but the way the divorce courts work is to speed the process up, especially when you have no children. One lawyer looked at me like I was crazy, when, teary eyed, I begged him to help me find a way to help slow things down until Bob came to his senses. His attitude was: ‘grow up.'”