The Latest Scare Cards to Prop up No-Fault Divorce

By Beverly Willett

After a rash of rumors about a Republican plot to end unilateral no-fault divorce, a writer for The Atlantic has weighed in. The piece devotes exactly one paragraph to the claim, asserting that “Texas has a chance of actually doing it” because Republicans occupy top seats in the executive branch and control the legislature. That’s old news from the 1990s. The article doesn’t disclose that prior attempts to end no-fault divorce in Texas failed.

The “chicken little” ramble (the sky is not falling) is framed as an imminent attack on the “unprecedented degree of freedom” enjoyed by women since enactment of no-fault divorce. A freedom so great that—wait for it—it eclipses the freedom of all freedoms once provided by Roe v. Wade. That’s quite the tall claim. But as a person who has worked tirelessly for divorce reform for more than a decade, in a volunteer capacity no less, this is just the sort of inflammatory pot-stirring I’ve witnessed to scare male legislators and shutdown any meaningful discussion about divorce reform.  

The law professor states that no-fault divorce laws have enabled millions of women to obtain divorces without having to prove spousal misconduct. This is true—and women also file the majority of divorce lawsuits. But that misses the more important point, which is that these laws allow plaintiffs (statistically mostly wives and moms) to sidestep the due process procedural safeguards of the Fourteenth Amendment, thereby preventing defendants (statistically mostly husbands and dads) from having their day in court. In family court, plaintiffs need merely assert their opinion that the marriage is over and that’s the end of it. Defendants are not permitted to object or present evidence to the contrary. Instead, judges are required to take the side of women and enter divorce judgments without a trial.

Frankly, I’m appalled that a law professor is cheering on lawsuits that don’t require proof—the very bedrock of a fair and just legal system.

If more women were on the divorce receiving end of no-fault divorces, rather than the other way around, you’d get a double dose of the screed this law professor serves up about historical unfairness to women. But the coverture laws she refers to that once limited a woman’s right to contract and own property are long gone. And nobody but nobody has suggested a return to antiquated laws of the 18th and 19th century. Considerable reform that protects women and ensures their equality in family court has been enacted since then by none other than, you guessed it, predominantly male legislators.

“Not until 1801 did a woman, Jane Addison, finally win a divorce based on adultery alone,” the article decries. Thankfully that was corrected centuries ago as the author notes, in 1801! Now, pursuant to no-fault laws, those who cheat on their spouses can sue innocent spouses with impunity. Pardon me if I’m not cheering.

The article paints a rosy portrait of women post-divorce. Statistically, this is false. Post-divorce, household income for women plummets about 41 percent. Overall, men, women, and children are far worse off physically, emotionally, and economically. That’s not progress.

The author makes the outlandish claim that access to no-fault divorce “makes women happier.” How so if the divorce rates for second and third marriages are considerably higher than for first marriages? Moreover, according to research in Brad Wilcox’s groundbreaking new book Get Married, married women with families are the happiest among women. According to a University of Chicago study, overall female happiness has declined steadily since the 1970s. (Hint, hint, that’s when no-fault laws were first enacted.) Married individuals scored 30 points higher on the happiness scale than non-married counterparts, including divorcees.

Next argument. Professor Wehle launches into the predictable diatribe against popular male media conservatives. For example, shockingly, Matt Walsh tweeted that “no fault divorce grants one person the ability to break the contract without the consent of the other. What kind of contract is that?” (The law professor applauds no-fault laws that don’t require “proof,” but apparently believes tweets are suitable evidence.)      

To answer Walsh’s question, why it’s no sort of contract at all. Kudos to him for recognizing the clear-headed truth, even though he’s neither lawyer nor law professor. Indeed, it violates basic principles of contract law learned by all first-year law students—contracts require “mutual” assent. And when breaches of contractual promises occur, the law provides remedies. Except for no-fault divorce where guilty parties breach marital contracts, sue for divorce, and get off scot-free.

By the way, that University of Chicago happiness study shows that those conservatives Wehle seems fond of shaming are happier than liberals too. Surprise, surprise.

Moving on, the author states that no-fault divorce “managed to meaningfully shift the power balance in marriage relationships” giving women “the option of leaving without their husband’s permission.” Finally we’re getting somewhere. But here’s the thing. Under 20th century fault-based divorce laws, both spouses had equal rights to sue—something the author doesn’t tell you. But as she appears to concede, achieving superiority over men in the divorce arena seems more the goal.

The article pulls out the domestic violence scare card too, arguing that eliminating no-fault divorce would threaten women’s lives. She notes the decline in murder by “intimates,” because doesn’t define the term, probably because intimates are more often boyfriends, not husbands. As for female suicide rates, recent evidence demonstrates that the highest fatality rates involve divorced women. You know, the deliriously happy ones because of no-fault. She also fails to mention the explosion of laws, policies, and organizations addressing domestic violence since the 1970s.

Thankfully, the article acknowledges that neither the Constitution nor Supreme Court precedent prevent states from eliminating no-fault divorce statutes. For her that’s a bad thing. Is she advocating that the Tenth Amendment, which reserves powers to the states, should be repealed? Or passage of a federal law outlawing no-fault divorce? I hope the Supreme Court will repeal no-fault divorce one day. And would welcome a Republican—or Democrat—plot.

My argument that unilateral no-fault divorce violates the Fourteenth Amendment has it “exactly backwards,” she claims, because there is no “express” mention of marriage in the Constitution and women are not considered “legal property” to which a man’s due-process rights could “conceivably attach.” Huh? Are we somehow back to the ridiculous discussion about coverture?

Otherwise, what’s the point? That Supreme Court decisions about marriage should be vacated like, for example, Loving v. Virginia, which held laws banning interracial marriage unlawful? Or Obergefell v. Hodges in which Justice Kennedy wrote that the right to marry is a fundamental right “inherent in the liberty of the person?”

Speaking of liberty, the article claims the Fourteenth Amendment’s guarantee of “liberty” includes “the full range of conduct which the individual is free to pursue” which “compellingly protects the person seeking to end a marriage.” Wow, another giant leap. Using that interpretation, one can imagine condonation of all sorts of nefarious deeds and injustices.

Beverly Willett is a retired lawyer, graduate of the Columbus School of Law at Catholic University of America, and the author of Disassembly Required: A Memoir of Midlife Resurrection.

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