In the last several months, the morality of no-fault divorce has been the subject of much debate - at least within some conservative circles. It’s not even an entirely new controversy, but it gained steam when a prominent political commentator publicly griped about his own pending divorce. He said that while there was no abuse or infidelity and the separation was not his choice, his wife simply no longer wanted to be married to him, and in their home state (as in everywhere else in the U.S.), “that is completely permitted. … (Divorce) is permitted when one party wants it - period.”
And with good reason.
He doesn’t have to like it. Many don’t. But the notion that anyone should be forced to stay married against their will - save for clear and convincing proof of some specific marital fault - is a dangerous one. Some make the argument that allowing divorce without a reason erodes the strength of America’s families. But our longtime New Jersey divorce lawyers recognize that in our legal system, fault-based divorce was always deeply flawed - and for reasons that had very little to do with culture wars or a prickly political climate.
People tend to forget (or perhaps never learned) that when U.S. states began to abandon fault-based divorce in the 1970s, there was a broad recognition about the fact that forced finger-pointing inevitably resulted in perjury and fabricated evidence. A lot of it. Because people couldn’t just say, “It’s over.” They had to publicly declare reasons. And what would happen if your reasons didn’t align with the statutory reasons allowed by your state? You lied. Sometimes, you both agreed to lie together.
But to back up a bit: U.S. divorce laws are rooted in old English law. There, the only way to get a divorce well up into the mid-19th Century was through an act of Parliament. So even where marital fault could be proven, it almost never happened because nobody could afford it. Divorce was reserved for the upper crust and well-connected. True, the divorce rate was low, but that’s because people had no out to toxic, unhappy, or dangerous unions.
Shortly after the American Revolution, some states began opting for judicial divorce. That meant the power to grant a divorce was entrusted to a judge, rather than lawmakers. Ultimately, all states onboarded a system of judicial divorce. However, they also all required proof that someone was at-fault. These grounds were lawmakers’ accepted basis upon which a divorce was justified. Each state had its own rules, but most had some combination of adultery, extreme cruelty, abandonment, or long-term incarceration.
Also, the plaintiff had to be innocent. If they’d done wrong too, the court could refuse to grant a divorce. This was a favorite tool of many abusers and narcissists.
But even when a split was relatively amiable, a fault-based system invariably pits the two parties against each other. The animosity kicked up could linger long after the dissolution - often making co-parenting after divorce an absolute nightmare.
Even if both parties mutually agreed they wanted to be divorced, the court could choose to deny their request if there was evidence the pair colluded to fabricate divorce grounds. And yet, colluding to fabricate divorce grounds became the preferred path for warring couples who simply wanted to go their separate ways. Pretty much everyone in the court system knew it, and simply turned a blind eye. It was particularly frequent in states with stringent fault-based grounds. New York, for example, only granted divorces on the basis of proven adultery. We have historical records of a whole niche industry cropping up for the express purpose of helping estranged spouses fabricate grounds for divorce.
Around this same time, cultural views about the value and purpose of marriage started to shift. Prior to the 19th Century, marriage was basically an economic necessity. But around the early 1900s, people started to take the view that the value in marriage was in companionship. People started marrying for love, and placing greater emphasis on their own personal fulfillment and happiness.
It’s true that this coincided with rising divorce rates. However, it wasn’t that people disregarded the importance of marriage. Rather, they placed a higher importance on a good marriage. Suffering for decades in a bad union suddenly seemed wholly unnecessary.
Around the late 1960s early 1970s, extensive research on no-fault divorce systems revealed many were highly corrupt and profoundly broken. No fault divorce laws started passing, starting in California. Suddenly, couples who agreed to separate didn’t have to lie to the court in order to do so. One party couldn’t trap the other with a trumped-up counterclaim. And female depression and suicide rates began to fall dramatically.
As someone who has practiced family law in New Jersey for many years, I think it’s important to point out too that whether separation is clearly attributable to a specific fault or not has little bearing on whether the marriage can be fixed. The truth is, spouses sometimes hurt each other. That can be in big ways like physical abuse or infidelity. It can also be in smaller ways like weaponized incompetence or passive aggression. But proof of legal fault doesn’t necessarily mean the marriage is irretrievably broken. I’ve seen marriages heal from some pretty awful wrongdoings - and be stronger for it. But on the flip side, I’ve also seen marriages that were completely dead with no hope of resuscitation - and for reasons that weren’t really anyone’s “fault.”
Also, even if fault is provable in divorce court, presenting that evidence publicly can be traumatic, dangerous, and often prohibitively expensive. If domestic violence survivors - who sometimes flee the relationship with very few resources - had to show up in court prepared with a strong legal case presented by a competent legal advocate just to get their foot out the door - many would be effectively stuck. Furthermore, being compelled to publicly challenge the control of an abuser in court could substantially escalate a survivor’s risk of harm and retaliatory violence. This is especially true when there’s more at stake than loss of a marriage. A grant of divorce on grounds of domestic violence could have direct implications for the child custody, immigration, and Second Amendment rights of the accused.
So as it stands now, all states have some form of no-fault divorce on the books. States that onboarded this option did not see a notable uptick in divorce filings. Actually, the U.S. divorce rate has actually fallen markedly over the last four decades.
Some states require a period of separation or a waiting period before filing. In states like New Jersey, people have the option of filing for a fault-based divorce, as spelled out in N.J.S.A. 2A:34-2, or they can file for no-fault divorce alleging irreconcilable differences that have persisted for at least 6 months.
Given the choice, people overwhelmingly opt for no-fault divorce. Because of this, most cases settle out-of-court. It’s cheaper. It’s easier. It’s less contentious and less emotionally stressful for everyone involved. It also reduces the sort of high conflict that has been shown to cause severe emotional damage to kids.
Lastly, let’s not forget the financial fallout that would happen if lawmakers indiscriminately repealed the no-fault divorce option. The more issues a couple has to duke out in court, the more expensive the case is going to be. Requiring people to prove fault would do little to keep people together, but it would drain them of financial resources that would probably be better spent on their children and/or helping them to establish a fresh start in this new chapter of their lives.
Plus, New Jersey’s family courts are substantially backlogged as it is. If everyone divorcing had to prove fault - on top of hammering out issues like division of assets, alimony and child custody- every case would easily take years. That’s not something our state - or its people - could afford.
Call Rozin|Golinder Law, LLC today at (732) 810-0034 for a free and confidential consultation.