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I try to avoid political screeds in my posts – that’s not why people visit a law firm website, and there are plenty of political commentators out there who do punditry far better than I do. But given that no-fault divorce is only under attack from a specific political segment, some spillover into politics is unavoidable. And I apologize in advance, because I’m only trying to convey where no-fault divorces stand now, not endorse or criticize any specific political party.
Brief Overview of No-Fault Divorce
We can thank Ronald Reagan for instituting the first no-fault divorce law in the United States. While in 1980 Reagan was the first divorced person to be elected president, it was as California governor back in 1969 that he signed the first-in-the-nation legislation to implement no-fault dissolution of marriage.
(Reagan, who later became darling of the conservative movement, also later described enacting no-fault divorces as his “greatest regret.”
Prior to no-fault divorce, spouses trapped in a bad marriage could not leave it simply because they were miserable or had fallen out of love. One spouse was required to prove sufficient grounds for the divorce, such as adultery, cruelty or desertion. California led a revolution, and now all fifty states have no-fault divorces (although some of them will still allow evidence of fault to affect the financial outcome).
Colorado adopted no-fault divorce in 1972, and now C.R.S. 14-10-106(1)(a)(II) provides that the only grounds for a divorce were that the marriage is “irretrievably broken.” And since the state is now no-fault, so there are no grounds for divorce, there are similarly no “defenses” to a divorce. Per C.R.S. 14-10-107(5), the defenses to traditional divorce (e.g. condonation, collusion or insanity) are also abolished.
For more information about divorce in Colorado, see our Requirement for a Colorado Divorce article in the Colorado Family Law Guide.
Benefits of No-Fault Divorce
Though many (most?) couples marry in a religious ceremony, marriage is fundamentally a civil institution, with rights and obligations defined by state law. And there is a strong tendency towards freedom of association rather than involuntary servitude, and no-fault divorce is a recognition of the fact that adults should be free to live their own lives and not forced to remain in an unhappy marriage.
Studies cited by CNN show that no-fault divorces have resulted in a reduction in intimate partner violence (i.e. domestic violence) and female suicides.
The institution of marriage is on the decline in the U.S., with marriage rates at an all-time low and less than half of their peak from the 1960s. Couples are less likely to enter into marriage if they know they will have a hard time backing out of it later. So ironically, while no-fault divorce may be blamed for a higher divorce rate, it may also be helping make the decline in marriage less steep.
Covenant Marriage vs No-Fault Divorce
In past years, religious movements have pushed to “opt out” of no-fault divorce, and convince a few states to enact “Covenant Marriages”, by which a couple at the time they enter into marriage could effectively opt-out of no-fault divorce, and then require either fault-based grounds for dissolution, or a lengthy period of separation. See our Covenant Marriage blog post for more details on this movement.
Covenant marriages appear to have peaked in the U.S. – the third, and last, state to adopt them was Arizona in 2002. And Colorado has not only not adopted them, but has affirmatively rejected the whole concept. Under the Uniform Premarital and Marital Agreements Act, a prenuptial agreement cannot modify the grounds for a divorce or legal separation. C.R.S. 14-2-310(2)(c).
Recent No-Fault Divorce Developments
While there have been no legal developments cutting back no-fault divorces in the U.S., there has been a potentially seismic shift in the political arena. Organizations with names such as “Coalition for Divorce Reform” have as their mission trying to undo no-fault divorces, which they blame for a higher divorce rate despite the divorce rate hitting a 50-year low in 2019.
Many prominent politicians are on record as opposing no-fault divorce. Mother Jones has a running list of politicians supporting fault-based divorces, including:
- Rep Mike Johnson, current GOP Speaker of the House (who has his own covenant marriage from Louisiana, one of the three states where they are legal).
- Vivek Ramaswamy, current GOP primary presidential candidate.
- Sen. J.D. Vance of Ohio.
- Sen. Tom Cotton of Arkansas.
Note that marriage and divorce are state issues, so federal officials or candidates have more impact by being on the “bandwagon”, as opposed to being in a position to actually ban no-fault divorces on their own.
However, some right-wing political commentators are loudly against divorce, such as Steven Crowder and Matt Walsh – and given their audiences, they will no doubt continue to influence politicians on the right.
I have no crystal ball, so am not about to predict what the future holds. But I suspect it may, at least initially, be a renewed push towards allowing couples to opt out of no-fault divorce with a covenant marriage, rather than trying to actually ban no-fault divorce outright.
