Creative Destruction

October 5, 2006

In Defense Of No-Fault Divorce

Filed under: Feminist Issues — Ampersand @ 2:49 pm

In this past Sunday’s New York Times, Robin Wilson writes:

What accounts for the new resistance to no-fault? Reasons include the growing evidence that divorce often hurts children, feminists’ renewed recognition of the importance of legal protection for mothers raising children, and concerns about the economic disparities created by differences in marriage rates. Gay marriage advocates have also played a role in this shift, by calling attention to “easy divorce,” which they say is the real threat to marriage, not same-sex unions.

Isn’t there a far more important group that Professor Wilson has forgotten to mention? It’s as if she hasn’t noticed that right-wing Christians, not feminists or same-sex marriage advocates, are the people running the government nowadays. Opposing divorce is a Christian right priority, not a feminist or a queer rights priority.

Lindsay at Majikthise, like me, is skeptical of the idea that feminism and gay rights “accounts for the new resistance to no-fault.” But she says she finds this argument of Professor Wilson’s more persuasive:

While I was living in Maryland, my husband, from whom I am now divorced, assaulted me (an assault for which he has since been convicted). On the whole, I had been impressed by how Maryland protects victims of domestic violence. But I also came to understand why the New York chapter of the National Organization for Women has opposed Judge Kaye’s unilateral divorce proposals.

When no-fault divorce advocates say that family law should pay no attention to the reasons why a marriage ends, what does this mean in practice for modern women like me who have careers and have built assets? We are told that we should in effect have to pay our batterers for the privilege of divorcing them. That seems to me, as to many other Americans, not only bad social policy, but deeply and profoundly wrong.

No law will ever be perfect for all abused women; but the harm to Professor Wilson, which is that her abuser got more money in their divorce than he would have in a fault system, is real but also relatively minor. Before we oppose no-fault divorce, we should also ask what opposing no-fauilt would mean for abused women who don’t have the economic or legal resources of a law professor, and who aren’t able to prove abuse in court. A “fault” law with teeth — for instance, a law that mandates a one-year delay before divorce can be granted, unless abuse is proved in a courtroom — would effectively of tie victims to their abusers, drawing out the process of separation for an extra year.

Furthermore, for many abused women, no-fault divorce seems to improve their “bargaining position” within a bad marriage. One study ((Betsy Stevenson and Justin Wolfers, “Bargaining in the Shadow of the Law: Divorce Laws and Family Distress,” Quarterly Journal of Economics, 121(1) February 2006)), published early this year in the Quarterly Journal of Economics ((I posted more about these findings here.)) (pdf link), found that when states switched to no-fault divorce, there were substantial benefits for some women:

…Easy access to divorce redistributes marital power from the party interested in preserving the marriage to the partner who wants out. In most instances, this resulted in an increase in marital power for women, and a decrease in power for men.

Our analysis of US data revealed the legislative change [to no-fault divorce] had caused female suicide to decline by about a fifth, domestic violence to decline by about a third, and intimate femicide – the husband’s murder of his wife – to decline by about a tenth.

I can support attempts to reduce divorce rates by providing positive help to stay married (free marriage counseling, for example), although I’m skeptical about how effective such programs will be. But we should all be against attempts to reduce marriage by disempowering people who want to leave marriage — proposals that, in effect, use the law to force people to remain married against their will. These laws will harm battered women most of all; having to prove abuse in court in order to be free of their abusers is a horribly unfair burden to place on victims of abuse. With all due respect, I’d ask both Lindsay and Professor Wilson to rethink their positions.

Hat tip: Feminist Law Professors.


  1. In New York State, which is the only true no fault hold out, feminists are a big part of the opposition, driven mostly by the belief that it allows better alimony awards than in no fault states which are often stingy in that respect.

    In states that had ceased to have no fault, the Christian Right is the only group that wants to return to it.

    Comment by ohwilleke — October 6, 2006 @ 4:52 pm | Reply

  2. For people like Wilson, it seems to me that it should be possible to have both “no fault” and “fault” systems.

    Comment by Glaivester — October 20, 2006 @ 5:07 pm | Reply

  3. No fault means losing your children to your abuser. At least fault allows mom to stay with the children.

    Comment by Rainbow — January 4, 2007 @ 6:52 pm | Reply

  4. No fault only means losing your children to your abuser if a judge finds that it is in the best interest of the child (in light of what they experience) and the abuser is not in jail or prison. Guys in Sing-Sing or on Riker’s Island don’t do very well in custody fights under No Fault rules.

    Domestic violence victims who press charges already have to recount their victimization once to police, again to the DA, and usually a couple of times to a criminal court. Indeed, they are sometimes compelled by subpeona to do so involuntarily. Requiring this to happen yet again in divorce court doesn’t help, and 5th Amendmenet issues would likely make abuse divorce cases with parallel criminal cases drag on even longer, waiting only until the criminal case is over.

    Also in No-Fault states, parallel temporary restraining orders provide a middle ground between criminal prosecution and fault divorce.

    Comment by ohwilleke — January 4, 2007 @ 8:32 pm | Reply

  5. I was abused for 20 years as a child. My father tried to kill my mother when I was one. She never filed criminal charges. My friend got a divorce from her abusive, addicted husband. He got supervised for 6 months, then regular joint custody. Her child cowers and cringes and cries all the time. Divorce court did nothing for me and my friend’s child and even less for victims of emotional and financial abusers.

    Comment by rainbow — February 14, 2007 @ 9:02 pm | Reply

  6. So you favor no-fault because it benefits women? Do you favor truth in court proceedings? Is that important to you? Your position discounts even the possibility that treacherous spouses, male or female, lie their way through family court. You are horribly naive. Family court injustices continue to crush the credibility of the entire court system.

    Comment by Jeff Rosenfeld — March 31, 2011 @ 10:32 am | Reply

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