Legacy of no-fault divorce

By David Blankenhorn*

June 1996 – Consider two facts. The United States has the highest divorce rate in the world. Moreover, virtually alone among nations, most states in the United States permit unilateral no-fault divorce: the right of either spouse to a divorce on demand, irrespective of circumstances.

Some analysts see no connection  between these two facts. I do.  For that reason, I favor reforming our no‑fault divorce laws.

The goals of reform are to lower the divorce rate and to improve the quality of marriage. The strategy is to eliminate the flagrant unfairness of the current system, primarily by giving more dignity and leverage to spouses who are keeping their marriage commitments and to couples who want to save their marriages.

In Michigan and elsewhere, reformers are offering several new ideas. One is the creation of incentives, such as lower marriage license fees, for couples to participate in pre-marriage counseling. Another is mandatory counseling, combined with longer waiting periods, for couples contemplating divorce.

The third leg of reform is probably the most important: In cases where only one spouse wants the divorce, an end to unilateral divorce on demand.

Instead, in deciding whether and under what conditions legally to end such marriages, as well as with secondary issues such as child custody and dividing marital property judges would be obligated to consider the question of basic justice, or what the law calls “fault.” Who is breaking the marriage promise? Who is the wronged spouse? Under no-fault, by definition, these questions are irrelevant. They should not be.

Together, these changes would eliminate the capriciousness of the current system and send a much healthier message to current and prospective couples. The message would be clear. When you say “I do,” you are making a legally serious commitment. Society cares whether your marriage lasts. If you and your spouse cannot agree over whether and how to end your marriage, you should know that the law will no longer automatically side with whomever wants out, but instead will exercise its limited but important influence on behalf of spouses who are remaining true to their vows.

Some opponents of reform argue that children do better when their parents divorce rather than stay together in unhappy marriages. But is it really credible, or even decent, to suggest that the world’s highest divorce rate is somehow good for children?

Such an argument ignores a large and growing body of research evidence showing that divorce harms children. It also ignores research showing that in a high‑divorce society, not only do more troubled  marriages end in divorce, but more marriages become troubled and unhappy. The goal of reform is not to force miserable people to stay together. The goal is a society in which more people have better, happier marriages.

Other skeptics contend that divorce reform will make divorce more adversarial and may lead to more domestic violence. But in both of these important areas, no-fault itself has probably done more harm than good. One recent study, for example, finds that no-fault divorce has led to an increase, not a decrease, in domestic violence against women. In addition, current reform legislation clearly states that domestic violence is both grounds for divorce and a crime.

Some defenders of no-fault will concede that divorce is too widespread, but insist that legal reform is not the only or best  answer. This argument rests on flawed logic. Even if some other reform – such as better marital preparation – ultimately proves more effective than legal reform, it does not follow that legal reform is futile or unnecessary. Moreover, it seems quite illogical to suppose that divorce laws do not affect divorce rates. Is there any other institution in our society that is unaffected by the laws that surround and define it?

At bottom, opponents of reform seem to believe that the current system is basically fair. I disagree. The principle of unilateral divorce on demand, without regard to circumstances, is an affront to any reasonable standard of fairness. Its knee-jerk bias in favor of divorce is not only a clear threat to children, but also an insult to the very aspirations of faithfulness and mutual commitment that lead most people to marry in the first place. Surely we can do better. Surely we ought to try.  

* David Blankenhorn is president of the Institute for American Values in New York and author of Fatherless America (Basic Books, 1995).