Briefing

Are Republicans coming for no-fault divorce?

It was once very difficult for Americans to get divorced. Could it soon be again?

First, the Supreme Court eliminated the federal right to an abortion in Dobbs v. Jackson Women's Health Organization. Then, Clarence Thomas signaled that, if he had his way, the rights to contraception, same-sex relations, and gay marriage — established in Griswold v. Connecticut (1965), Lawrence v. Texas (2003), and Obergefell v. Hodges (2015), respectively — could be next on the chopping block.

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But that's not all. Now, Media Matters warns in a new report that American conservatives could be setting their sites on no-fault divorce, which allows spouses to dissolve their marriage without proving wrongdoing by either party. Here's everything you need to know:

What is the history of no-fault divorce?

For most of American history, it was very difficult to get divorced. Before the Civil War, Alabama couples looking to dissolve their marriage would need to take their case to the state legislature and obtain a two-thirds majority in both houses.

Gov. Ronald Reagan of California, himself a divorcé, signed the country's first no-fault divorce law in 1969. Before that, spouses seeking divorce generally had to prove adultery, abandonment, or cruelty, often resorting to perjury in order to obtain a divorce.

One by one, the other states followed California's lead, with New York becoming the last state to adopt a no-fault divorce law in 2010.

Traditionalist conservatives argue that no-fault divorce has crushed the American family. In a 2021 op-ed for The Hill, Joseph Chamie noted that married couples now make up a minority of American households and that the proportion of children born to unwed mothers has doubled since 1980.   

Others claim that no-fault divorce has been a net positive, especially for women. According to the National Bureau of Economic Research, "there was a large decline" — usually around 20 percent — "in the number of women committing suicide following the introduction of unilateral divorce." Rates of domestic violence also dropped.  

What are American right-wingers saying about no-fault divorce?

Plenty.

Media Matters collected statements from several right-wing figures who have been critical of no-fault divorce. Those featured included Daily Wire hosts Matt Walsh and Michael Knowles and YouTubers Tim Pool and Steven Crowder. Pool suggested that the policy discourages men from getting married, while Crowder denounced no-fault divorce as a system under which "if a woman cheats on you, she leaves, she takes half."

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But, as Nate Hochman observed in National Review, all this talk hasn't translated to much action. "Which Republican is campaigning on repealing no-fault divorce?" he asked, describing the policy as "a tragic mistake, from the social-conservative perspective."

The closest we've gotten to a nationally prominent Republican speaking out against no-fault divorce is Ohio Senate candidate J.D. Vance. Last September, Vance told a group of high school students that allowing people "to shift spouses like they change their underwear" was bad for children and appeared to suggest that even "violent" marriages should be saved. Vice News, which first reported on the comments, asked Vance why he believed "it would be better for children if their parents stayed in violent marriages than if they divorced" and whether he supported a federal law making divorces more difficult to obtain.

Vance, whose 2016 memoir Hillbilly Elegy described the abuse he endured at the hands of his repeat-divorcée mother and her romantic partners, refused to answer Vice's questions and instead issued a blistering response. "In my life, I have seen siblings, wives, daughters, and myself abused by men. It's disgusting for you to argue that I was defending those men," he said in a statement. He also argued that no-fault divorce did not deliver on its promise, since "domestic violence has skyrocketed in recent years, and is much higher among non-married couples."

Is no-fault divorce actually in any danger?

Not from the Supreme Court.

Attempts to link the Dobbs decision, Clarence Thomas' dissent, and no-fault divorce are somewhat misleading. The Supreme Court has never recognized a constitutional right to easy divorce. According to the National Constitution Center, "Nothing in Obergefell" — or in Loving — "defeats the continuing power of states to decide what benefits go with marriage, and to decide who can marry — so long as a state does not discriminate against people that the Constitution makes equal." This means that Obergefell also "left entirely intact the power of states to write and enforce laws governing divorce — that is, when marriages may be ended."

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Every state in the union is still theoretically free to ban no-fault divorce whenever it wants; it's as easy as pushing a bill through the state legislature and getting the governor to sign it. Congress could also pass federal legislation imposing strict limits on divorce, though that's significantly less likely to happen.  

What's happening in Texas?

The official 2022 platform of the Republican Party of Texas calls on the legislature to "rescind unilateral no-fault divorce laws and support covenant marriage."

What is a covenant marriage? It's a separate kind of marriage contract that exists only in Louisiana, Arizona, and Arkansas. A Louisiana fact sheet explains that the state's covenant marriage law, which was passed in 1997, "describes a covenant marriage as a marriage entered into by one male and one female who understand and agree that the marriage between them is a lifelong relationship." (The "one male and one female" bit was struck down by Obergefell, but the rest of the law remains in effect).

Parties to a covenant marriage must undergo pre-marital counseling (religious or secular); commit to "make all reasonable efforts to preserve their marriage, including marital counseling;" and agree to tighter restrictions on divorce. In Louisiana, covenant marriage divorce is allowed only in cases where one spouse has committed adultery, been convicted of a felony, physically or sexually abused the other spouse or their children, or been separated for two years (or between one year and 18 months following a legal separation).

Covenant marriage isn't particularly popular. Between 2000 and 2010, only about 1 percent of Louisiana couples chose that option. But if the Texas GOP has its way, covenant marriage could become the only option.

Of course, one should take the Texas Republican platform with a grain of salt. This is, after all, the same platform that calls for a secession referendum. Writing for The Week, David Faris described the document as "an expression of ideals that aren't binding on anyone, including the state legislature."

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