Challenging the No-Fault Divorce Regime

Divorce laws both create and reflect a reality about marriage. When divorce is difficult or impossible to secure, marriage is thought of as an enduring, tighter community, and small irritants can be forgotten or forgiven. When divorce is easy to secure, partners in a marriage tend to think of themselves as individuals first before marriage partners, and marriages can dissolve easily.

American states initially adopted a fault-based idea of divorce, where a spouse could initiate divorce proceedings only when he/she could prove the other spouse had committed some fault like adultery, abandonment, or extreme cruelty. As time went on, states expanded the grounds for fault-based claims. Thus sat America’s divorce system until the early 1970s, when, following California, all states eventually adopted no-fault, at-will divorce laws. Such laws allowed one party to leave marriage for whatever reason or for no reason at all. This bold policy change, disguised as a bureaucratic adjustment, ended the idea of marriage as an enforceable contract.

The number of divorces soared. Destabilizing marriage ended up making marriage less attractive—and marriage rates have plummeted from 72% before the reforms to under 50% in 2022. Commentators find it increasingly difficult to talk about the tragedy of divorce as more people divorced. Poverty and suicide increased for children of divorce, as did depression, drug use, and crime.

When the no-fault regime was adopted, most were concerned that men would run away with younger women. Marriage was thought to stabilize or civilize men, and destabilizing marriage, many worried, would further destabilize men. Default rules were made to discourage men from thoughtlessly breaking the bonds of marriage. To the surprise of many, it turned out that women file for a majority of divorces in every country that has no-fault divorce. Overall, women file for nearly 70% of divorces in America. 

Some advocates celebrate wife-initiated divorces as expressions of female empowerment. Women are more often victims of intimate partner violence, so, the thinking goes, the newfound freedom to divorce allows women to escape bad marriages. Women no longer need to be “held back by the marriage” or endure boorish or abusive behavior. Divorce, as one economist argues, “is good for women.”

At the same time, others see that no-fault divorce creates financial and custodial incentives for women to file for divorce, since the structure of proceedings can allow wives to get decent levels of spousal support and gain custody of children. Most divorces are initiated not for abuse, infidelity or desertion, but for relatively minor and transient reasons like irreconcilable differences, drifting apart, or lack of emotional support. 

When judges have discretion, they tend to favor women in settlements. Nationwide, men are the custodial parent only about 20% of the time, according to U.S. Census data. The numbers at the state level differ markedly. Most states have adopted a judicially-determined “best interest of the child” standard for allocating child custody. Under such laws, men generally see their children less. Both Texas and California have laws that favor joint custody of children, but in each of them, men actually see their children less than a third of the time. According to research by Custody Change, men see their children only 30%  of the time in New York. It is even worse in Illinois (23% of the time), Washington (24%), Oklahoma (22%), and Tennessee (22%). 

Florida Restructures Its Default Settings

Florida has restructured the default settings for negotiations under the at-will regime. Following Kentucky, a new Florida law assumes that a 50-50 split between spouses is in the best interest of the child (though the assumption is rebuttable). The bill garnered bi-partisan support in the legislature on the principles that parents walk into the courtroom on equal footing. Presumably, this will end the silent favoritism judges have traditionally shown women in custodial proceedings. 

Kentucky passed a similar law in 2017 with overwhelming bipartisan support, as did Arkansas in 2021. Kentucky and Arkansas have the highest divorce rates among women in the country. Fifty-fifty custody laws may encourage women to have sobering second thoughts about divorce. 

Perhaps these laws are having such an effect. The number of court filings for divorce proceedings in Kentucky plummeted from 22,512 in 2016 to under 20,000 only a year later. It also coincided with a decrease in the number of domestic violence fillings, perhaps indicating that some charges of domestic violence were designed to tip the scales in custody proceedings. Kentucky’s divorce rate also sunk from 3.79 per thousand residents in 2016 to 3.3 in 2021 (the last year for which we have good statistics). Divorce rates are declining nationwide, so Kentucky’s 50-50 law may not be responsible for the entire decline. Statistics about the percentage of women who file for divorce in Kentucky are not available. 

Florida’s new alimony law changes incentives as well. Florida’s spousal support laws have long been based on a formula linking alimony amounts to the length of marriage, culminating in eligibility for permanent alimony for marriages lasting longer then 17 years. Under the new law, couples married less than three years are not eligible for alimony, while those married 20 years or longer are eligible to receive payments for up to 75% of the term of the marriage. Marriages lasting from three to 10 years are eligible for alimony for 50% of the term, while those lasting 10 to 20 years are eligible for 60% of the term. Generally, there are fewer payments for shorter periods of time. Under the new law, there are also more ways of ending alimony payments early, including factoring in the retirement of the person paying the alimony. 

Generally, marriage is vastly more unstable under the no-fault, at-will divorce regime. Challenging the entire no-fault regime may backfire under current conditions, but changing the default settings for divorce proceedings may promote more marital stability. At the very least, setting default positions on child custody and spousal support or alimony, as Florida does in its new laws, increases the predictability in divorce proceedings. Increasing predictability will lessen the benefits that women have been getting from divorce judgments under “objective” standards like “best interests of the child.” If women are less likely to gain benefits from a divorce, they may file for divorce less frequently than before. 

Scott Yenor is Senior Director of State Coalitions at the Claremont Institute’s Center for the American Way of life and a professor of political science at Boise State University. 

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.