Attacks on Conservatives Supporting Divorce Reform Are Mounting

Fallacious claims against conservatives who are speaking out against our nation’s disastrous divorce laws are gathering steam. The assertions are branded as the latest war on women. It’s troubling that attention is being diverted from this serious issue affecting our nation’s families, for the evident purpose of frightening women. 

Like other conservative commentators and politicians, vice-presidential hopefuls are now weighing in about no-fault divorce. J.D. Vance said these laws made it “easier for people to shift spouses like they change their underwear.” In his new book, Carson calls for “legislation to remove or radically reduce incidences of no-fault divorce.” Vivek Ramaswamy and Tom Cotton have also been critical of no-fault divorce.

The attacks go something like this: 1) Conservatives are engaged in a growing patriarchal plot to overturn unilateral no-fault divorce—laws in 48 states that permit divorce on demand by either spouse, without cause or proof; 2) the threat is imminent; and 3) women will revert to the status of property and be at risk of harm through suicide or physical abuse.

There is no plot—I laid that to rest in my editorial for the Washington Examiner. Red states like Texas and Georgia have repeatedly rejected divorce reform.  For years, my colleagues and I advocated for extremely modest reform that would have kept no-fault intact and exempted victims of domestic violence. However, even that gained little traction.

Except for New York, which adopted unilateral no-fault in August 2010, 47 other states enacted such legislation between 1970 and1985. Dismantling this long-entrenched system state-by-state will take a massive, concerted effort. An even greater longshot would be for a new case to make its way to the U.S. Supreme Court. But that would take years.

Unfortunately, for every conservative politician critical of no-fault divorce, there’s an equally or more powerful one taking advantage of the leverage afforded by these divorce laws. The family law bar is a powerful one, too, and lawyers still occupy a great number of state legislative seats, especially in Texas.

Moreover, the percentage of federal and state legislation enacted is embarrassingly low. Nonetheless, the fact that an Oklahoma bill to eliminate no-fault recently died is being cited as a dire warning to women because “that doesn’t mean it might not be resurrected.” 

Still, I’m glad more leaders are speaking out about the harm of divorce. We need reform.

However, the suggestion that only conservatives care about this issue is not true. Over a decade ago, I was approached by a former Assistant Secretary in the Bush administration to form a bi-partisan volunteer organization to advocate for divorce reform—there were individuals on both sides of the political aisle who recognized the harm of our current divorce system. Former chief justice of the Georgia Supreme Court Leah Ward Sears, who was on Obama’s short list for SCOTUS, told me that she believed no-fault ran afoul of the U.S. Constitution. On the floor of the Senate, Hillary Clinton called for amending the Constitution “to take away…the idea of no-fault divorce.”

And still not one state has come close to eliminating no-fault. Let’s assume, however, that the prospect is imminent. (I’d love to be proved wrong on this one, by the way!) It’s argued that support for abolishing no-fault divorce by conservatives demonstrates their disregard for domestic violence victims. SCOTUS just put that canard to rest. In U.S. v. Rahimi, five Republican-appointed justices upheld a federal statute that prohibited persons subject to a domestic violence restraining order from possessing firearms. In his new book, Carson states unequivocally that in marriage there is “no room for abuse of any kind.”

Even so, the argument goes, if women can no longer freely dispose of their husbands, they’re in danger of reverting to the status of property, faced with the option of suicide or succumbing to physical beatings.

First, the claim that my position on the unconstitutionality of no-fault “relies on the idea that women are property” is patently false. Of course, women aren’t property and assertions that eliminating no-fault will send them back to the 1800s are patently absurd. If anyone is treated like chattel, it’s victims of unilateral no-fault divorce who are literally disposed of by their spouses with the law’s blessing. Their marriage is severed, their property distributed, and time with their children slashed, without any opportunity to object.

Those who oppose divorce reform also often cite a 21-year-old study suggesting causation between a reduction in female suicide and domestic violence after enactment of no-fault divorce. This is also problematic. Children with married parents are less likely to witness abuse. Most divorces involve low-conflict marriages, and violence is way down the list of reasons most women give for initiating divorce. Most often cited are “unmet needs” and “deficient work-life balance.” In the words of another study, too much housework.

A University of Chicago study shows that since the 1970s when no-fault laws were enacted, women’s happiness has decreased steadily. Meanwhile, as Brad Wilcox shows in his new book, the happiest women are those married with families.

These articles typically frame the so-called conspiracy as one involving the patriarchy. The latest acknowledges that while the law is gender-neutral, women will be trapped in marriages if no-fault is eliminated. However, it quickly segues into a diatribe about abortion, circling back to the patriarchy.

But men are also victims of domestic abuse. And although women file for divorce more often than men, I’ve lost count of the broken women who contact me when their families are upended by husbands unilaterally divorcing them. It’s women who suffer more economically from divorce, too.

Children don’t seem to matter because they’re rarely, if ever, mentioned in these discussion, even though the negative consequences following divorce are well-settled. Hillary Clinton has written about the harm to children, too.

We must never make light of domestic abuse. We need robust laws and support for victims. But eliminating unilateral divorce won’t leave true victims without recourse. Since passage of no-fault divorce, state domestic violence protections have sprung up all over the country and at the federal level. State procedures are in place for restraining orders against abusers. Conservative Supreme Court justices just handed victims a major victory by rejecting a Second Amendment claim in favor of upholding a federal statute barring abusers from possessing firearms. Divorce laws don’t require separated spouses  to remain together, and spouses can receive temporary support while a divorce is pending. “Cruelty” is a robust cause-of-action for fault-based divorces. Yes, proof is required, like any other lawsuit.

But if a law is unconstitutional, as unilateral no-fault divorce most certainly is in my opinion, it cannot stand. The decades-old study mentioned above acknowledges that by granting power to the person who wants out of the marriage, no-fault divorce reduced the power of the party wanting to preserve it. I’ll go one step further. It not only reduced that power, it abolished it altogether, resulting in blatant discrimination among spouses in family court in violation of the Equal Protection and Due Process clauses of the U.S. Constitution.

With neither law nor facts on their side, debate tactics on this important issue have stooped to name-calling, using trigger words like “far-right,” “extremist,” and “Christian.” Mike Johnson was recently labelled a “weirdo” in a “covenant marriage.” A hard-working leader is worthy of our disdain for taking his marriage vows seriously and wanting to protect his son from the pornography epidemic plaguing our nation’s youth? Sadly, to certain political hardliners, acknowledging that an opponent has any redeeming qualities, even as a husband or a father, is apparently seen as a betrayal to one’s own side.

Whatever happened to following Michelle Obama’s advice during the 2016 Democratic Convention: “When they go low, we go high”?

If additional laws are needed to protect individuals going through divorce, let’s pass them. It’s possible to strike down unconstitutional laws and protect women—and men—at the same time. But only if we work together.

Beverly Willett is a lawyer, Co-founder of the Coalition for Divorce Reform, and author of Disassembly Required: A Memoir of Midlife Resurrection. Her novel-in-progress is entitled Nobody’s Fault.

Editor's Note: The opinions expressed in this article are those of the author and do not necessarily reflect the official policy or views of the Institute for Family Studies.