The No-Fault/Fault-Based Divorce Debate

South Dakota lawmakers are currently reviewing House Bill 1221, which would implement unilateral no-fault divorce in the state.

If passed, Mississippi would be the only remaining state in the country without unilateral no-fault divorces. Despite the move over the last 50-plus years toward no-fault divorce, there has been a significant push recently to make obtaining a divorce more difficult.

Many stereotypes and misconceptions permeate family law statutes and the fault-based/no-fault divorce argument is no different. So let’s analyze the debate by looking at how the laws have evolved over the past several decades and breaking down the arguments from each side.

The difference between no-fault and fault-based divorce.

First, let’s establish what the difference is between no-fault and fault-based divorce.

Simply put, in states without no-fault divorce like South Dakota, parties must prove wrongdoing in order to obtain a divorce.

Laws vary by state, but in South Dakota couples may seek a fault-based divorce because of adultery, extreme cruelty, willful desertion or neglect, habitual intemperance, or conviction of a felony.

No-fault divorce allows couples to divorce without placing any blame for the marital breakdown. States typically will have several reasons to choose from when filing a no-fault divorce, such as “incompatibility” or “irreconcilable differences.”

The argument for fault-based divorce.

Despite South Dakota’s no-fault bill, many politicians have been trying to do away with no-fault divorce in the past few years.

In recent years, lawmakers from more than a dozen states have proposed bills that either end no-fault divorce or make the divorce process more difficult. In many cases, this involves longer waiting periods before divorces are granted, mandated counseling courses, or limiting resources couples can formally split.

In 2011, Presidential candidates Rick Perry, Michele Bachmann and Rick Santorum signed a pledge from the Family Leader, a conservative organization in Iowa, that recommended cooling off periods for people seeking divorce.

In 2013, Iowa introduced a bill that would have prohibited no-fault divorces for couples with children under the age of 18. Had the law passed, those couples could only divorce in cases of adultery, imprisonment due to felony, abuse, abandonment, or if a couple had been separated for at least two years.

Their justification is that divorce shouldn’t be easy. Since divorce can have a myriad of negative effects on children, these politicians see stricter divorce laws as a way to preserve families.

However, history and statistics expose the flaws in this line of thinking.

The argument for no-fault divorce.

California was the first state to legalize no-fault divorces when Gov. Ronald Reagan signed the Family Law Act in 1969. Forty-five states joined California within a decade.

By a number of measures, no-fault divorce has been a success.

One of the main arguments for passing the South Dakota bill is that it would give greater protection to those in abusive relationships by giving the victim the option of whether or not to talk about their abuse when seeking divorce.

Studies have proven that no-fault divorce laws do help decrease domestic violence. A 2003 Stanford University study discovered that there was a large decline in domestic violence for both men and women in states that adopted unilateral divorce.

But what about the children?

Certainly, there are a number of risks children of divorce face. Ideally, every child would grow up in a stable two-parent home. Unfortunately, that’s not always possible and forcing couples to stay together by making divorce more difficult can exacerbate the problem.

Divorce should be treated as the very last option when it becomes painfully clear that a marriage is unsalvageable. But in those situations where divorce is unavoidable, it makes more sense for parents to work out an amicable divorce with an effective co-parenting plan – since shared parenting is the most effective way to mitigate the negative effects divorce has on children – than to keep a child in a home where the parents are constantly fighting.

By drawing divorces out and putting the onus on each spouse to prove fault, politicians are decreasing the chances that divorces are going to end on good terms. When marriages end with hard feelings, that boils over as the parents try to work out custody and visitation schedules.

Although divorce can have a negative effect on children, much of that stems from the environment of hostility that is left in the divorce’s wake rather than the actual break-up. If parents work together and establish effective shared parenting plans, children are much more likely to live well-adjusted, happy lives.

The politicians and family organizations promoting these measures might have good intentions. But their efforts to preserve families are counterproductive when it involves proposing laws that make divorce unnecessarily contentious.