""Divorce is more than a legal act. It is an emotionally devastating experience for most families. Without arresting the cruel legal tactics and replace them with a compassionate response towards the casualties, we are destroying our own National Treasure – the American Family. Only when we finally see the truth of what was perpetrated, can we dispel the Illusion that's held us spellbound for far too long." -- Judy Parejko, Stolen Vows
No-Fault divorce is not well understood by people who haven't been divorced and aren't in the divorce industry. When normal folks do come to wrap their heads around this concept, they are invariably shocked and horrified that this abomination has silently become the law of the land in all fifty states. No-Fault divorce is a very big part of the reason why America's divorce rate is going through the roof.
What is No-Fault Divorce
No-Fault divorce, like No-Fault auto insurance, means settling the claims without considering whose fault it was. Previously, a person could not get a divorce unless he or should could prove that their spouse did something wrong. The settlement of property, alimony, etc. would depend on the relative faults of two sides. Now, a No-Fault divorce can be filed without any presumption of wrongdoing. If a husband wants to dump his loving and supportive wife of 25 years and move in with a younger woman, it isn't anybody's fault and it isn't necessary for the man to prove that his wife did anything wrong. All he has to do is state that there were “irreconcilable differences” and they will be divorced. Even a person who has done absolutely nothing wrong can still loose their children, home, and savings as well as their spouse.
Unilateral divorce vs consensual divorce
No-Fault divorce is fine if the husband and wife both want a divorce (though hopefully they've considered their children's interests not just their own). Not many people object to that kind of divorce. In the old days, in some states, partners needed to prove “Fault” even when they both wanted the divorce – nobody wants a return to that. The objection is only against unilateral No-Fault divorce. Today, about 80% of all divorces are unilateral (according to many sources quoted by Stephen Baskerville in Taken into Custody, as well as references that I've seen on many other websites.). A few states still have divorce on grounds such as adultery or abuse, but they are seldom used because they are much more expensive and achieve the same results as No-Fault.
Origin and spread of No-Fault
The story of the origins of No-Fault divorce is told by Judy Parejko, in her book and website Stolen Vows. It started in California in 1969, promoted as a way to avoid lawyers and courts in cases where both the husband and wife wanted the divorce. The husband and wife could just declare that the marriage was broken and end it, without either side needing to prove in court that the other side was wrong or at fault. In these cases of mutual consent, No-Fault is indeed a great improvement. But along the way, the idea got corrupted so that it could be applied unilaterally against the other spouse. The original intent was to provide social services for rescuing marriages, but that was never done and no state has such a thing. Not surprisingly, unilateral No-Fault was championed by a California assemblyman who was personally involved in a divorce and wanted to save money on alimony. As Parejko explains, "The bill wiped out all of California's previous grounds for divorce and replaced them with a sole standard for divorce-- "the irremediable breakdown of marriage"'. The divorce rate in California skyrocketed, lawyers made a lot of money due to the higher number of divorces, more jobs were created for family courts, and everybody was happy except for kids (who can't vote anyway) and forcibly-divorced spouses.
Maggie Gallagher's book Abolition of Marriage tells a similar story. “Under the guise of making merely technical adjustment to the legal mechanics of divorce, the legal profession radically transformed the legal and moral basis of marriage. It created a new beast: not no-fault, but unilateral divorce. Today, while it still takes two to marry, it takes only one to divorce.”
The last holdout was New York, which adopted No-Fault Divorce in July, 2010 against the opposition of a few groups such as Catholics. Divorce Magazine bragged about how a flood of divorces was unleashed by the change. The New York Times society section described a marriage of two rich people (both with kids) who were now each able to divorce their previous spouses and marry each other.
Is a divorce really “nobody's fault” or is a choice?
A divorce, unlike a “no-fault” auto accident, is a choice made by one or both spouses. If it is mutually agreed upon, then the fault is unimportant and it can be considered as “nobody's fault”. But most divorces are the decision of just one person and are not freely agreed upon by both. That doesn't necessarily mean the divorce is purely the fault of the person filing for divorce (the plaintiff). It is entirely possible that a unilateral divorce could have been due to mistakes on both sides. Perhaps the woman wants to leave a marriage to an extremely controlling and unloving husband; or perhaps domestic violence was involved, or alcoholism. Or maybe it was the defendant who had an affair, and the plaintiff decided to end the marriage. In some cases like these, the divorce is not 100% the fault of either side. Judges might need to make judgments, which after all is what they are paid to do. But those cases are the exception, not the rule. In many divorces, a husband wants to leave his wife for sake of a younger woman, or a wife wants to leave her husband to marry somebody else who has more money. Or, also a person in a mid-life crisis might not actually be having an affair, but still decides to leave a good-enough marriage and a good spouse and put the kids into a broken home without any good reason. These people just “want to find themselves”, or “have their own space”, or “pursue their own goals” or some nonsense like that – though this decision affects kids, their spouse, and extended family not just themselves. In these kinds of cases – which are very common – the “Fault” is perfectly clear and considering the divorce as No-Fault is a travesty.
Pros and Cons
No-Fault is promoted as being more "humane" than fault-based divorce, since the plaintiff doesn't need to prove that the defendant is in some way a bad person. But in fact it is far less humane, since the defendant is punished through loss of child custody, financial penalties, or loss of his/her home with no chance of defense. A filing of a divorce is very much an accusation against the defendant; "No-Fault" just means that the accusation is automatically assumed to true with no burden of proof.
Defenders of No-Fault sometimes make the claim that "you can't force somebody to stay in a marriage", as if it is somehow an issue of personal liberty. Nothing could be further from the truth. A divorce doesn't mean just being able to walk out without fear of retaliation -- it is suing your spouse to claim property or child custody or have him or her evicted from their home. It is one person forcing their will not only on their spouse who might have done nothing wrong, but also causing tremendous damage to the children and extended family. A unilateral No-Fault divorce is a horrendous violation of the personal rights of the plaintiff, children, and extended family.
Likewise, promoters of No-Fault sometimes see it as quick way to escape from domestic violence. But the reality is that we already have lots of laws about domestic violence (see separate section), and divorce is much more likely to be a cause of domestic violence than an escape from it. The most vicious and dangerous marital conflicts are often caused by infidelity, which is encouraged and protected by No-Fault laws.
Still another argument sometimes made is that No-Fault divorce is less expensive than a fault based divorce. The financial cost of one divorce might be less, but the sheer number of divorces more than compensates for it. The non-monetary costs such as harm to the children are just as great for No-Fault as for a fault-based divorce.
I have never heard even one valid reason why unilateral No-Fault divorce should exist, other than that it makes money and jobs for divorce lawyers, mediators, etc.
No such thing as a marriage contract
In effect, unilateral No-Fault divorce makes marriage meaningless and unenforceable. Anybody can divorce their spouse at any time without any reason. There is no more marriage contract. Marriage is not "until Death do us part", it is just "until I get tired of you or until I get a better offer". If you want to divorce a spouse who cheated on you, or a spouse cheated on you for somebody who is younger or wealthier and now wants to divorce you to marry their new partner, or if you mutually agree to go your separate ways – it's all the same and makes no difference. Family courts no longer have anything to do with dispensing justice. In any other kind of law, the courts will try to encourage parties to honor their agreement and punish the wrongdoer, but in family law the person who breaks the agreement automatically wins. A divorce is a lawsuit of a plaintiff against a defendant as in criminal law or normal civil law, but in this case the plaintiff automatically wins and doesn't need any evidence.
Family Courts and “Justice”
Criminal courts and ordinary civil courts are there to dispense justice, at least in theory. Judges are supposed to judge right and wrong and make decisions in the best interest of society. If facts indicate beyond reasonable doubt that a man raped a woman, then the man will be considered at fault and the criminal court will order punishment in order to protect society and deter rapes by others. Likewise, a civil court might consider the facts of a contract dispute between two companies, and award punitive damages against the company which broke the contract. This, also, is in the interests of society and is about dispensing justice. Family law courts, however, washed their hands of justice when they adopted the principals of No-Fault Divorce. Though some officials might claim to be acting in the best interests of children, really the only goal of a family court is efficiency of processing divorces as quickly as possible. If family courts were genuinely concerned about the best interests of children, they would try to prevent unnecessary divorces rather than encourage and reward them.
Lying to children about No-Fault divorce
Because of No-Fault, parents are required to tell their children about the divorce using such words as “Mommy and Daddy both love you very much, but we don't get along with each other any more and we both made a decision to divorce”, followed by more lies that both parents will continue to love them and be part of their lives “forever and ever and ever” though in the real world the non-custodial parent will probably be gone from the child's life after a few years. Parents should be encouraged not to trash each other in front of the children, and it is true that fighting between parents hurts the kids (of whatever age.) But these kinds of lies are not good either. Most likely the divorce was NOT a mutual decision by both parents, but instead one parent made a selfish decision that his/her personal well-being was more important than that of the kids. Of course all parents love their children to some extent, but one of the parents made a decision to divorce despite the harm that it would cause to the children. (See my section Co-parenting about talking to older children honestly in cases of unilateral divorce.)
As Matt Abbott points out in a story of No-Fault divorce posted on a Roman Catholic website, the courts' policies about indoctrination of children in "No-Fault" is also a violation of religious freedom of speech: "No-fault divorce reaches beyond home-schooling and attempts to control the religious free speech of the non-breaching party. In this case, the psychologist assigned to the case commented negatively on the wife who had allegedly told one of the children about divorce, leading to the child saying, 'Daddy broke the family.'"
"Of course, such a statement is an absolute no-no in no-fault divorce, which maintains the strife is nobody's fault. Since one of the key aspects of no-fault divorce is to ensure that nobody is blamed, any shadow of casting blame labels one party as the 'judgmental' one. Consequently, that party is likely to lose parenting time and parenting control. Bai was punished severely."
Review of Stolen Vows, by Judy Parejko
Review of Abolition of Marriage by Maggie Gallagher
Review of Taken into Custody by Stephen Baskerville