In 1969, California Gov. Ronald Reagan signed the nation’s first no-fault divorce law. Now, every state in the nation has no-fault divorce on the books, thereby removing the process that once required courts to determine which spouse’s wrongdoing was to blame for the end of a marriage. But today, some lawmakers are seeking a return to the fault-based system of divorce, arguing that divorce is too easy, and that no-fault divorce is unfair to men given that statistically, women initiate the majority of divorces. 

But requiring people to stay married unless a specific set of legal criteria have been met has been tried and failed. No-fault divorce was initiated in the late 1960s because the older, fault-based system simply wasn’t working, and created significant problems not only for the troubled couples directly involved, but also for the court system as a whole. It turned out that fault-based divorce did not deter people from breaking up or support the pursuit of happiness. 

The issue with fault-based divorce

The system of fault-based divorce required a couple to demonstrate to a judge that the partner asking to end the marriage had legally valid reasons to do so – typically limited to severe circumstances such as abuse, adultery, or alcoholism. Simple unhappiness, no matter how deep, was not enough.

This system tasked courts, in essence, with deciding which spouse was “innocent” and which one was “guilty,” and who therefore deserved the “punishment” of divorce. But this divorce-as-punishment model with a good guy/bad guy outcome didn’t allow for a mutual agreement between consenting adults that it was time to depart from the marriage. 

The system also invited perjury and falsified evidence, committed by partners desperate to meet the legal burden required for a dissolution of marriage. Often, it could be the case that the partner who stood before the court with the most outrageous stories of private mistreatment “won,” whether that testimony was factual or not. If they lived in a conservative state, couples weren’t thwarted from divorce – instead, they would simply travel to a state with more liberal divorce laws. But in spite of the hardships they created, there is no evidence that fault-based divorce laws led to greater marital satisfaction; they simply created higher (and more expensive) hurdles for people who were already unhappy.  As it became clear that the fault-based system encouraged perjury, false evidence, and created more problems than it solved, state by state, the nation moved to approve no-fault divorce laws.

The reality of divorce today

As a divorce attorney, I’ve seen that in a clear majority of cases, people don’t divorce because their partner was abusive, a cheater, or an addict. The most common reasons couples seek divorce are that they simply don’t get along anymore, have grown apart, are no longer attracted to one another, or no longer wish to be restricted to just one partner.

In addition to making it harder for unsatisfied couples to part ways, repealing no-fault divorce would strain the legal system by requiring everyone to work within fault-based grounds, even when there’s no dramatic evidence to point to.

It’s not hard to see how imposing such limits on people who may want to exit their marriage for their own personal set of reasons leads to troubling scenarios involving the creation of false evidence, false documentation, or false testimony about more severe difficulties, such as physical abuse. A system that rewards fabrications leads to lengthier court proceedings, unnecessary costs, and a waste of already limited court resources.
In states where “fault” divorce is still an option, people don’t have a significantly lower divorce rate or reap tremendous benefits. It simply means you can allege fault by your spouse that led to your breakup, and sometimes can ask for more property. But the reality is, every single breakup potentially has two people sharing a portion of the blame, and every single divorce court deals with people pointing a finger at their spouse. So, there’s no lottery ticket at the end of your divorce rainbow even if you can provide evidence that your spouse had an emotional affair with a coworker. Time and energy devoted to determining who’s at “fault” is time better spent working on more meaningful issues, such as a custody arrangement that benefits the children, or an equitable division of assets.

Going back to the time before no-fault became the law of the land would be the exact opposite of the goal of divorce: helping people move forward.