What we can VERIFY about claims regarding ‘no-fault divorce’

In 2023, multiple viral social media posts have claimed some Republican lawmakers have plans to repeal no-fault divorce laws nationwide. No-fault divorce allows an individual to end their marriage without having to prove any wrongdoing on the part of a spouse.

VERIFY reader Stacie asked us in a text message if there’s any truth to the viral claims.

Here’s what we can VERIFY about no-fault divorce and viral social media claims.

THE SOURCES

• Legal Information Institute (LII) of Cornell Law School
• MetLife
• National Bureau of Economic Research
• National Council on Family Relations (NCFR) report
• Journal article published in the Law and History Review
• Journal article published in the The Quarterly Journal of Economics
• Journal article published in the Virginia Law Review
• JSTOR Daily, a daily magazine that contextualizes current events with scholarship found on JSTOR
• Republican Party of Texas
• Nebraska Republican Party
• ACLU of South Dakota
• Modern Law, a divorce and family law firm in Arizona
• Thomas A. Ramunda Jr., divorce and family law attorney in Parker, Colorado

WHAT WE FOUND

Traditional fault divorce is not the same as no-fault divorce

In the United States, traditional fault divorce and no-fault divorce are the two legally defined divorce categories courts recognize, according to Cornell Law School’s Legal Information Institute, MetLife and divorce attorney Thomas A. Ramunda Jr.

Traditional fault divorce requires a person filing for divorce to prove some sort of wrongdoing on the part of their spouse, the Legal Information Institute says. Some of the most common reasons for traditional fault divorces include adultery, bigamy, abuse, cruelty or abandonment. MetLife says a spouse is allowed to object to a traditional fault divorce, but they would need to disprove the fault by presenting a defense to the court.

No-fault divorces, on the other hand, do not require any showing of wrongdoing to file for divorce, according to the Legal Information Institute. Instead, the filing spouse can claim the marriage has broken down and the couple can no longer get along as grounds for divorce. Depending on the state, the terminology used in many no-fault divorce laws may be “incompatibility,” “irreconcilable differences” or “irreparable breakdown of the marriage.”

Only one spouse needs to file for a no-fault divorce, even if the other spouse does not agree with the divorce, MetLife says. They note that some states may require a physical period of separation before allowing spouses to file for a no-fault divorce, which differs from traditional fault divorce rules in some states.

MetLife says no-fault divorces tend to be a “quicker, simpler, and cheaper option for couples filing for divorce” because spouses do not need to prove marital misconduct. No-fault divorce is also a more private way to file for divorce since couples aren’t required to reveal personal or intimate details of their marriage to the court, according to the insurance company.

Critics of no-fault divorce often blame it for the destruction of the sanctity of marriage, the decline of the American family and rising divorce rates, according to the Legal Information Institute and an article published in The Quarterly Journal of Economics.

Researchers found that no-fault divorce laws have led to drops in domestic violence and female suicide rates.

Are Republican lawmakers attempting to repeal no-fault divorce laws? 

Although multiple viral social posts and several national news reports claim Republican lawmakers are attacking no-fault divorce laws nationwide, VERIFY found very little legislation attempting to repeal no-fault divorce being introduced at the state level as of Dec. 1, 2023.

However, we did find that the Republican Party of Texas and the Nebraska Republican Party have added their stance on eliminating no-fault divorce under certain circumstances to their platforms in recent years.

In 2022, the Republican Party of Texas, for example, urged the Texas Legislature “to rescind unilateral no-fault divorce laws, to support covenant marriage, and to pass legislation extending the period of time in which a divorce may occur to six months after the date of filing for divorce.”

Meanwhile, the Nebraska Republican Party says on its website that it “believes no-fault divorce should be limited to situations in which the couple has no children of the marriage.”

In early 2023, The Republican Party of Louisiana also considered backing the elimination of no-fault divorce in the state, but local news reports say the measure was sent back to the Louisiana Republican State Central Committee’s resolution-vetting group for more work. 

The ACLU of South Dakota says South Dakota State Rep. Tony Randolph (R) introduced a bill to remove “irreconcilable differences” as grounds for divorce in the state each year since 2020. Randolph’s latest measure, House Bill 1238, was introduced on Feb. 1, 2023, but it died in chamber.

House Speaker Mike Johnson (R-LA) has spoken out against no-fault divorce in the past. In a 2016 sermon at a church in Shreveport, Louisiana, Johnson said no-fault divorce, along with abortion and feminism, had turned America into a “completely amoral society.”

Johnson has advocated for couples to enter covenant marriages many times over the years. 

Johnson and his wife, Kelly, entered a covenant marriage in 1999, according to a 2001 news article. The couple spoke about their marriage in a 2001 interview on Good Morning America.

“In my generation, all we’ve ever known is the no-fault scheme, and any deviation from that seems like a radical move,” Johnson said. “We’ve all been jaded by our parents’ divorces.”

“Because so few people have chosen covenant marriage in Louisiana, it seems like an unpopular idea. It’s not unpopular — it’s just unknown. Once the message is out there, a whole lot more people will choose it,” he added.

Louisiana law defines a covenant marriage as “a marriage entered into by one male and one female who understand and agree that the marriage between them is a lifelong relationship.” Arizona, Arkansas and Louisiana are the only three states that allow covenant marriages in the U.S.

Spouses in a covenant marriage can get a divorce, but only for a handful of reasons under the fault principle. Those reasons include adultery, desertion, physical or sexual abuse, a felony conviction and sentence, and separation for a period of time. Spouses must also get counseling before they file for divorce, according to Modern Love, a divorce and family law firm in Arizona.

Several conservative commentators, including podcaster Tim Pool and PragerU host Michael Knowles, have also openly opposed no-fault divorce over the years.

In 2015, The Daily Wire columnist Matt Walsh said: “If we really want to protect the sanctity of marriage, we'd start by abolishing no-fault divorce.”

Right-wing YouTube personality Steven Crowder complained about Texas’ no-fault divorce laws during an April 2023 taping of his show “Louder with Crowder.” 

“I have been living through what has increasingly been a horrendous divorce. Let me say from the outset, to be clear, there was no infidelity or any kind of physical abuse on either side. And no, this was not my choice. My then-wife decided she didn’t want to be married anymore. And in the State of Texas, that is completely permitted,” Crowder said.

“Children need a mom and a dad, and divorce is horrible. But in today’s legal system, my beliefs don’t matter. In Texas, divorce is permitted when one party wants it, period,” he added.

No-fault divorce is permitted in all 50 states

In 1969, California became the first state to pass a no-fault divorce law when then-Governor Ronald Reagan signed a bill creating unilateral divorce in the state.

No-fault divorce is now recognized in all 50 states and the District of Columbia. However, only 17 states are considered “pure” or “true” no-fault divorce states because they only allow couples to file for divorce based on no-fault grounds. This means a person cannot get a traditional fault divorce in one of these states, except under certain fault-based circumstances. Meanwhile, 33 states offer spouses going through a divorce the option of filing either for a no-fault divorce or a traditional fault divorce.

The 17 states with pure no-fault divorce laws include:

• California
• Colorado
• Florida
• Hawaii
• Indiana
• Iowa
• Kansas
• Kentucky
• Michigan
• Minnesota
• Missouri
• Montana
• Nebraska
• Nevada
• Oregon
• Washington
• Wisconsin

Before no-fault divorce, traditional divorce was less common

Before no-fault divorce was permitted in all 50 states, divorce was rare and spouses were only allowed to divorce “if, and only if, the other spouse had committed an offense against the marriage,” according to an article published in the Virginia Law Review.

Under the fault-based divorce system, the most typical grounds for divorce were adultery, desertion and a form of cruelty. Other common grounds included habitual drunkenness, impotence and drug addiction. The Virginia Law Review article also says some states had more unique grounds for divorce.

“In Hawaii, leprosy was grounds for divorce; in Virginia, if a husband discovered his wife had been a prostitute, he had the right to get out of the marriage. Tennessee quite reasonably provided that if one spouse tried to kill the other spouse ‘by poison or any other means showing malice,’ the victim was entitled to divorce,” the Virginia Law Review article explained.

As the demand for divorce grew from the late 1800s to the 1940s, many couples seeking a divorce colluded with each other to get their divorce granted. This means both parties agreed to come up with a lie to get out of their marriage even if they did not have a real fault-based reason, which was technically illegal in most states.

“Once this agreement was in place, one of the two, usually the wife, filed suit, accusing the other party, usually the husband, of violating the marriage in some statutory way. The defendant would let the case go by default. He or she would simply not show up, or not enter a defense. The judge would decree a divorce,” the Virginia Law Review article noted.

Other couples, typically with money, would escape states with strict divorce laws to get their divorces granted in states with less restrictive rules, like Nevada or Florida, in a practice known as a “migratory divorce.” To get a migratory divorce granted, at least one spouse would have to live in the state they migrated to for a certain period of time, typically around three to six months. 

Legal scholar Laura Oren wrote that the National Association of Women Lawyers (NAWL) was one organization instrumental in getting states to achieve uniform no-fault divorce law reform. In 1947, NAWL drafted the first model bill for no-fault divorces in the U.S., arguing that divorce no longer required a “wronged person” for the divorce to be granted.

In 1952, the organization sought consideration for their proposed Uniform Divorce Act by the National Conference of Commissioners on Uniform State Laws (NCCUSL). But the conference refused to consider the NAWL proposal unless it was submitted by a section of the American Bar Association, according to Oren, and the NCCUSL continued to bypass the women lawyers and their bill for years.

After the passage of California’s no-fault divorce law in 1969, the “no-fault divorce grew quickly in popularity among the states from the 1970s onward,” the Legal Information Institute says. By then, a National Council on Family Relations report says a “divorce law revolution” at the state level resulted in legislative amendments to or repeals of fault-based divorce laws in 37 out of the 50 states. New York became the last state to adopt a no-fault divorce law in 2010.