No-fault divorce is an option available in all 50 states. But it might not be for long if Donald Trump wins a second term, further emboldening a surging Christian nationalist movement that has divorce reform in its sights.
Already, several GOP-led states, including Nebraska, Oklahoma, Texas and Louisiana, are moving to end or restrict the ability of a spouse to exit a marriage without establishing fault.
That’s troubling enough. But what’s even more troubling is that this effort is part of a larger strategy by extreme conservatives to return the United States to traditional patriarchy, where their religious views become laws that govern us all.
Sound impossible? Consider that women are already being forced to carry unwanted pregnancies to term in states around the country. Some states are moving to restrict access to reliable birth control. What happens when women are trapped in bad or abusive marriages because they’re too hard to escape?
Trump, who is on his third marriage after getting divorced from two previous wives, hasn’t taken a public position on eliminating no-fault divorce. But he is notorious for shifting his positions to suit his base and is loath to lose their support on any issue. And the list of other Republican luminaries who support such a change is lengthy.
Ohio Senator JD Vance, who was named Trump’s running mate, has made his position clear, saying that no-fault laws allow people to “shift spouses like they change their underwear.” House Speaker Mike Johnson of Louisiana even preached a sermon on the laws in 2016, claiming they had turned the country into a “completely amoral society.” Johnson and his wife have a “covenant marriage,” a special type of union available in just a few states. It’s based on the concept that marriage is a lifetime commitment and is exceptionally hard to dissolve.
Extreme conservatives argue that abortion, birth control and no-fault divorce have eroded the family, promoted promiscuity, hurt children, and, not incidentally, disfavored men. Society, they say, has suffered from loosening morals.
But whose morals?
Effects of no-fault
No-fault divorce came into being when California Gov. Ronald Reagan, who had been divorced and remarried, signed the first no-fault divorce bill into law in 1969.
Before then, a woman seeking a divorce had to prove grounds for it — typically, adultery, extreme cruelty, or abandonment, and the bar was high. Leaving a marriage without a decree usually meant all joint assets were left behind. Women, in particular, often were left destitute and unable to remarry.
Marital rape wasn’t considered illegal in many states until 1993. And while many states quickly followed California’s example, it was a decades-long battle for some. Shockingly, it was 2010 when New York became the last state to offer a no-fault option. Even today, only 17 states are considered “true no-fault,” meaning it is the only option.
Opponents of no-fault divorce argue that the laws are unconstitutional because they violate the 14th Amendment by depriving a spouse of due process. Beverly Willett, a leader of the Coalition for Divorce Reform, said in a recent article in the Guardian that in such cases, a person “has absolutely no recourse to say ‘Wait a minute, I don’t want to be divorced and I don’t think there are grounds for divorce.’”
But that’s precisely the issue. It’s not uncommon for one spouse — often the one with greater assets — to prefer the status quo. The survival of the partner trapped in an abusive or exploitative marriage may depend on her ability to easily dissolve it and start over.
Statistics show that as states adopted no-fault laws, rates of domestic violence, suicide and murder within marriage fell. Domestic violence incidents dropped by an estimated 30%.
To the Supreme Court?
Regrettably, given the conservative 6-3 makeup of the U.S. Supreme Court, an argument such as Willett’s might find sympathy. A court stacked with even more conservatives, as would likely happen in a second Trump term, could be even friendlier.
If the Supreme Court were to find no-fault divorce laws unconstitutional, it would represent an immediate and dramatic setback for women’s rights. Divorce would become far more adversarial — and costly.
And women wouldn’t be the only losers in this scenario. Men, too, could find themselves trapped in marriages with little way out.
Nevertheless, the sentiment for eliminating the practice is growing within a conservative movement now dominated by evangelicals.
Popular right-wing blogger Matt Walsh has for years called for a return to fault-based divorce. In a January 2023 social media post, he said, “I agree with men who say that the system has been rigged against them. Easiest way to fix this is to get rid of no-fault divorce completely and alimony in most cases.”
Related Articles
Discover the oldest Quaker meeting house in California
Adidas pulls Bella Hadid ad after antisemitism claims
As a scholar, he’s charted the decline in religion. Now the church he pastors is closing its doors
Israeli military says it will start drafting ultra-Orthodox men
An increasing number of NYPD cops are citing the Bible to keep their beards
The Nebraska Republican Party platform calls for fault-based divorce for any couple with children. The Texas Republican Party’s platform goes further, calling for the elimination of no-fault divorce, stating that the state’s “Family Code shall be completely rewritten with regards to No-Fault Divorce and Child Custody … We urge the Legislature to rescind unilateral no-fault divorce laws, to support covenant marriage …”
The overturning of Roe v. Wade should alert all of us to how little long-standing precedent means.
Christian nationalists are free to live according to their own values — that’s their right. However, they aren’t free to impose their values on everyone else. This is the United States, where freedom of religion also includes freedom from religion. Women, in particular, have learned the hard way what happens when that standard gets eroded.
Patricia Lopez is a Bloomberg Opinion columnist. ©2024 Bloomberg L.P. Distributed by Tribune Content Agency.