Today, all fifty states and the District of Columbia recognize no fault divorce. Two states, Mississippi and South Dakota, make this type of divorce available by parties’ mutual agreement only. Even though it is so widely available, there are some important misconceptions about what no fault divorce actually means and how it impacts the parties.
Let’s start with a definition. Each jurisdiction might have slightly different terminology, but basically a “no fault divorce” means that either party can initiate and obtain a divorce without having to prove that either party is to blame. For this reason, some people refer to no fault divorce as “unilateral” divorce.
You've probably heard the term “irreconcilable differences,” this essentially means that at least one of the parties decided they no longer wanted to be married. Except for covenant marriages (recognized in Arizona, Arkansas, and Louisiana), there doesn’t have to be more than that. Different states may use variations of this. For example, Arizona requires the divorce petition to state that the marriage is “irretrievably broken.”
This seems like a perfect opportunity to dispel a myth that commonly exists throughout movies and television: that one spouse can stop a divorce by refusing to sign divorce documents. While admittedly this makes for more compelling drama, it isn’t real. A spouse cannot refuse to get divorced. Once a divorce petition is filed and served, a clock starts for the other spouse to file a response. If no response is filed, the party who filed the petition can seek entry of default, which essentially consists of the court entering a judgment consistent with the contents of the divorce petition. Assuming no technical defects or other limitation, the filing party gets everything they asked for in the petition and the parties are divorced. It is pretty straightforward.
History of No Fault Divorce
It hasn’t always been this way. Fault-based divorce was the only way to divorce in the United States until 1969 when California became the first state to implement its no fault option. It then took another forty plus years before the last hold out, New York, modified its divorce framework in 2010. And, as mentioned above, Mississippi and South Dakota still limit no fault divorces to cases where both spouses agree to divorce.
Why No Fault Divorce Matters
No fault divorce is really important. Research found that the introduction of no fault divorce reduced domestic violence by as much as 30%; female suicide rates by as much as 16%; and marital homicides by as much as 10%. Researchers found that the availability of no fault divorce not only enabled abuse victims to more easily leave their abusers, but also made potential abusers aware that they could be left. These numbers are significant on their own, but even more so when additional context is provided. Today, it is estimated that more than two thirds of all heterosexual divorces in the United States are initiated by women.
Other studies have found that no fault divorce, particularly mediative or collaborative proceedings, help tremendously to insulate children from the consequences of contentious divorce.
What the Critics Say
Not everyone supports no fault divorce. Certain political commentators and organizations have renewed campaigns against no fault divorce recently. Some say by making divorce easier, it increases the number of divorces. The data suggests otherwise. Recent studies have shown that "in the years since no-fault divorce became well-nigh universal, the national divorce rate has fallen, from about 23 divorces per 1,000 married couples in 1979 to under 17 per 1,000 in 2005."
Others have argued that no fault divorce erodes the family unit and hurts children. Obviously divorce can adversely affect children. However, the comparison is rarely made between divorce outcomes and how the children would be affected by their parents remaining in a bad and, at least in some cases, dangerous marriage. World Psychology published a study that found that most children of divorce “are resilient and exhibit no obvious psychological problems.” The study further reiterates that “marital instability” is a risk factor itself.
Others say it makes family court too easy to weaponize against men. While this may have been true in the past, nearly every state has updated its family court statutes to be sex-neutral. However, it is true that some of the most impactful considerations in child custody litigation disproportionately impact men. Men are more likely to abuse drugs and alcohol. Men are also roughly twice as likely to commit acts of domestic violence. In our experience, these are the two most common reasons why family courts reduce a father’s parenting time or custody rights.
Religious organizations often claim that divorce is unbiblical and should be prohibited. Some prominent politicians have even promoted the idea that all marriages should be covenant marriages. Covenant marriages are modeled after religious covenants and make divorce impossible unless a spouse can prove specific cause like adultery or physical abuse. Most victims of abuse are afraid to confront and reveal their abuser especially in a scenario where it is uncertain whether they will be believed. This and the inherent challenge of proving something in court could severely restrict access to divorce.