No-Fault Divorce, Dobbs, and the Right’s War on Female Choice

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While attention has justifiably been paid to the threat to bodily autonomy posited by recent Supreme Court decisions and declarations of intent, other dangers have received relatively little notice. In this article, I draw attention to the importance of defending individual autonomy and agency in the field of no-fault divorce, which is beginning to come under conservative fire. First I provide a brief contextualization of the existing threat to bodily autonomy declared by the revoking of the right to abortion. Then, I clarify what the term ‘no-fault’ divorce means and elaborate on the social protections that this form of divorce allows the majority of couples. Next, I address the critiques of no-fault divorce from social conservatives and argue for the necessity of insisting on the continuing legalization of the freedom to divorce. Especially in the wake of conservative legal decisions, it is vital to treat attacks on no-fault divorce as credible and dangerous.  

On June 24, 2022, the United States Supreme Court overturned its decision in Roe v. Wade by ruling for the plaintiff in Dobbs v. Jackson Women’s Health Organization. The ruling, now infamous among liberals, declared that abortion was not a fundamental right protected by the Constitution. Even before the ruling, public outrage in anticipation of restrictions to abortion access had begun to mount. For decades, justices faced questions regarding their future rulings around Roe during their Senate confirmation committee hearings. Many liberals and moderates alike had considered the right to abortion stable, so when a draft opinion of Dobbs was leaked in May, the American public reeled at the potential for Roe’s overturning. The Human Rights Campaign declared Roe’s overturning “outrageous and dangerous” for women and queer people, emphasizing that while other SCOTUS cases protecting bodily autonomy or gender identity were not yet at risk, conservatives would be galvanized to test the limits of legal equality.  

Over a year after the Dobbs decision, we are beginning to see conservatives question these legal guarantees to bodily freedom. In May 2023, Rolling Stone declared the conservative attack against no-fault divorce the “Next Front in the GOP’s War on Women.” No-fault is a type of divorce that allows the couple to declare ‘irreconcilable differences’ instead of going to court to fix the blame on one party. No-fault divorce does not mean that assets are split equally; husbands and wives can still seek a disproportionate share based on their behavior and/or experience.  

No-fault divorces require that an individual be legally allowed to end their marriage rather than remain contractually bound to stay wed throughout a lengthy trial or bargaining process. Following America’s widespread adoption of no-fault divorce laws, researchers found that these policies reduce both suicide and domestic violence. These laws exist in all fifty states and, because no-fault does not require individuals to produce evidence, it is by far the most common type of divorce.  

Generally speaking, women are more likely to initiate divorce, with recent numbers placing the disparity at approximately 69% to 31%. Social conservatives’ move to abolish no-fault divorce would disproportionately harm women who want to escape their marriages, whether it be because of abuse, irreconcilable differences, or otherwise. In concurrence with this sentiment, CNN classified these conservatives’ move against no-fault divorce as an “attack on women.”  

In Texas, an argument for getting rid of no-fault divorce seems to harken back to a desire for traditional marriage and family values. In Louisiana, GOP members are targeting no-fault divorce because they believe the policies “weak[en]... the institution of marriage.” No-fault divorces are cheaper and easier than fault-based divorces – but from a conservative moral standpoint, this is the whole problem. Some on the political right believe that no-fault divorce is too “accessible” — to the point where it “devalues marriage vows.”

While the threat of no-fault divorce is both credible and terrifying, it is not an immediate danger. Most advocates for the abolition of no-fault divorce admit that the policies are not yet on their way out, but they “wish” the threat was more real. Conservative Beverley Willet, a self-proclaimed victim of no-fault divorce, is one of these proponents. For five years, Willet fought her divorce – and because New York did not yet have a no-fault divorce law, her children and husband endured a lengthy court battle. According to Willet, no-fault divorce violates the Fourteenth Amendment because it deprives defendants of due process of law. In her view, because defendants are not allowed to oppose the divorce in court or offer witnesses, a no-fault divorce is unconstitutional.

In 2020, the Supreme Court of Nebraska decided in Dycus v. Dycus that no-fault divorce was constitutional. The case dealt with the divorce of Debra and Michael Dycus – the latter of whom did not want to be divorced for religious reasons. Michael Dycus’ attorney argued that no-fault divorce violated the 14th amendment because his identity was as Debra’s spouse. However, the Court found that Michael had overlooked the fact that Debra had the freedom to identify as someone who was not married to Michael. The Court found “no merit” in Michael’s argument that he was deprived of due process of law because he was not allowed to argue his divorce. Ultimately, despite Michael Dycus’ attempt to use Beverley Willet’s logic in arguing against no-fault divorce, the Court found that the 1972 Nebraska law was constitutional. 

It is worth noting once again that at the time of my writing this article, all fifty states have no-fault divorce laws in place. There are mounting efforts in some states to do away with these policies to protect the institution of marriage, but the threat is not yet immediate. However, in light of the decision in Dobbs, I argue we should treat the Right’s murmurs with the attention they deserve. No-fault divorce laws are not just good for women – they are easier, cheaper, and have little to no impact on the rate of divorce in America. Not only does allowing people freedom from unhappy marriages result in a decrease in suicide rates and domestic violence, but it also acts as a declaration of bodily autonomy.  

If America reneges on the promise of freedom to divorce, they are also reneging on a promise of agency. Historically, divorce has provided a lifeline and an assertion of female independence. If no-fault divorce is revoked, victims of domestic abuse will have to stand up in court and relive their trauma in the hopes that a (likely male) judge will believe they have endured enough. Abusers will know that their victims will be unable to escape them without evidence and a lengthy legal proceeding. Before no-fault divorce, victims of abusive marriages were known to be deterred from seeking divorce because of the difficulty of proving fault, the social stigma of divorce, and the significant financial strain.

According to CNN, couples who wanted a divorce before the institution of no-fault laws were legally forced to create some sort of scenario to divorce over. In more amicable situations, the couple would work together to “feign adultery” or travel across state lines to separate. Even in the most optimal situations where both partners in a marriage want to separate, the legal process requires a minimum of hundreds of dollars for an attorney and extends the divorce process. 

Perhaps no-fault divorce is not yet under heavy fire, but it very well might be soon. In his concurring opinion in Dobbs, Justice Clarence Thomas suggested that the Court should revisit past Supreme Court cases like those protecting gay marriage and birth control. According to Justice Thomas, the Court has a responsibility to “correct the error” made in past precedents.

Justice Thomas’ declaration has served to galvanize right-wing conservatives and proponents of traditional, hierarchical family structure. Men’s rights activists are demanding changes to divorce law, alimony payments, and child support. In a YouTube video posted in June 2022, conservative Stephen Crowder spoke out against no-fault divorce and the power it gives women. Earlier this year, footage was released of Crowder emotionally abusing his pregnant wife. Luckily, the state of Texas still has a no-fault divorce law, and Crowder’s wife left him. Still a critic of no-fault divorce, Crowder addresses his own by clarifying that the divorce was not his choice, but that his wife was empowered to leave him if she chose. 

In a twist of fate, Crowder’s life is perhaps the most glaring support of no-fault divorce laws and of why it is so integral that we fight for their necessity. Advocates of no-fault divorce do not advocate for divorce; they support the right of individuals to make their own decisions about their relationships. Wives who are unhappy with their partners deserve the independence to be able to leave them without having to drum up animosity in the courtroom. Men who are beaten by their partners should not be forced onto the stand to confront their abuser in the hopes of being hurt badly enough that they will be legally granted escape.

No-fault divorce is bigger than just divorce and goes beyond the caricature that is painted of it as the easy way out of frivolous marriages.  No-fault divorce is an enshrinement of the fundamental legal right of an individual to the freedom of choice. In the wake of Dobbs and concerted efforts to limit reproductive freedom, no-fault divorce is a hallmark of independence.   

Greta Filor is a senior at Brown University double concentrating in Economics and History. She is a staff writer for the Brown Undergraduate Law Review and can be reached at greta_filor@brown.edu 

Jack Tajmajer is a senior at Brown University concentrating in Political Science and Economics. He is an editor for the Brown University Undergraduate Law Review and can be contacted at jack_tajmajer@brown.edu