A handful of conservative legislators and pundits have recently called into question the propriety and validity of the concept of no-fault divorce. In response, a flurry of articles[1] have been published discussing how and why no-fault divorce has become the law of the land in the United States and the motivations behind the burgeoning movement to abolish it.

As the name suggests, a no-fault divorce does not require the court to make a finding of fault or wrongdoing to dissolve a marriage. To obtain a divorce in Illinois, all the court needs to find is that “irreconcilable differences have caused the irretrievable breakdown of the marriage” and that “efforts at reconciliation would be impracticable and not in the best interests of the family.” 750 ILCS 5/401.

No-fault divorce is not a new or unique concept. California was the first state to pass no-fault divorce legislation in 1969. Since that time, all 50 States and the District of Colombia have enacted their own no-fault divorce laws.

Prior to no-fault divorce becoming the prevalent type of marriage dissolution, a party who wanted a divorce needed to prove some form of wrongdoing by their spouse (e.g., adultery, domestic violence, substance abuse, abandonment, etc.). This caused divorce litigation to be arduous and adversarial.

The implementation of no-fault divorce laws removed blame and wrongdoing from the legal analysis, requiring a party to simply claim that “irreconcilable differences have caused the irretrievable breakdown” of the marriage. This reformation streamlined the process and made it much easier for a person to obtain a divorce.

Proponents of the movement to abolish no-fault divorce argue that this increased accessibility to divorce is causing moral decay and the destruction of family values (similar arguments heard from anti-abortion/birth control advocates).

Supporters of no-fault divorce argue that forcing couples to remain in irretrievably broken relationships is a breeding ground for dangerous conflict, and that the push to abolish no-fault divorce is just the latest right-wing attack on women’s rights and autonomy.

Research has shown significant declines in domestic violence, homicide, and suicide rates, particularly among women, following the implementation of no-fault divorce laws.[2] No-fault divorce advocates fear that a return to a fault-based divorce system would severely limit a spouse’s ability to extricate themselves (and their children) from a dangerous, and potentially deadly, situation.

Although access to divorce is often taken for granted, threats to that access should be taken seriously. As we have recently seen, settled law can become unsettled in a relatively short period of time. It is important to stay vigilant now more than ever.

Samuel T. Czervionke, Associate

For more information on Mr. Czervionke, please visit:
www.beermannlaw.com/team/samuel-t-czervionke.

[1] Tessa Stuart, The Next Front in the GOP’s War on Women: No-Fault Divorce, Rolling Stone, May 2, 2023; Molly Jong-Fast, The Right’s Assault on Divorce Will Put More Women at Risk, Vanity Fair, May 10, 2023; Caroline Shanley, The Right’s Move Against No-Fault Divorce is an Attack on Women, CNN, May 18, 2023; Katha Pollitt, The Right’s Latest Target: No-Fault Divorce, The Nation, June 8, 2023

[2] Betsey Stevenson and Justin Wolfers, Bargaining in the Shadow of the Law: Divorce Laws and Family Distress, NBER Working Paper No. 10174, December 2023