by Matt Johnston
Introduction
The evolution of no-fault divorce in the U.S. is intertwined with cultural and social transformation. Originating from revolutionary reforms in early 20th-century Russia, the concept of dissolving a marriage without proving or even claiming fault found its way into American discourse, challenging traditional views on marriage and divorce. It is no secret that the Bolshevik-Soviet model of no-fault divorce, and family law more broadly, influenced Western intellectuals and legal scholars.[1] This article explores the pivotal moments that shaped America’s no-fault divorce laws in America, from intellectual discussions to legislative action.
In the wake of the Russian Revolution, notable reformers like Vladimir Lenin and Alexandra Kollontai developed a basis for dismantling traditional family structures,[2] introducing one of the earliest concepts for no-fault divorce in the 1918 Family Code.[3] Alexander Goikhbarg was a key architect in drafting legislation known as irretrievable breakdown, which allowed for marriage dissolution without proving fault. This reflected the communist ideal of gender equality and breakdown of the patriarchal system.[4] [5] The final reading of the no-fault divorce statute was, “87. The basis for divorce can be either the mutual consent of both spouses or the desire of one of them to get divorced.”[6] According to Marxist-Leninist ideology, no-fault divorce was viewed as a means to an end – the transitionary period between the elimination of the old capitalist family and the creation of the new socialist family. Contrary to popular belief, the Bolshevik intention was not to eliminate the family as such, but to destroy the “outdated” organizing principle of the private nuclear family in order to “liberate” family members from the shackles of “religious” and “materialistic” considerations. These radical changes resonated in Western intellectual circles, inspiring American writers like Theodore Dreiser and John Reed to discuss progressive social reforms. This transatlantic exchange of ideas helped seed discourse on family policy at a time when social critics were beginning to mock traditional roles of women, marriage and family.
From Ideas and Attitudes to Legal Implementation
While the groundwork for no-fault divorce had already been laid during the Roaring Twenties with critiques of existing marital norms, the explicit discussion and advocacy for no-fault divorce in its modern form began to take shape in the post-World War II era, particularly in the 1950s and 1960s.[7]
1947: The National Association of Women Lawyers (NAWL) took the first significant step to legislate divorce without fault by proposing the idea of no-fault divorce.[8] NAWL believed the fault-based system was unjust to women who often suffered in silence, pointing out that women were often trapped in abusive or unhappy marriages and unable to prove fault, thereby coerced into committing perjury.
1950s: No-fault divorce gained more academic and legal traction. Herma Hill Kay, who later became Dean of UC Berkeley School of Law, critiqued the fault-based system for fostering dishonesty and stressed the need for laws reflecting the “reality” of marital breakdown without assigning blame. Similarly, anthropologist Paul Bohannan, who published Divorce and After, argued that divorce was an organic process, with no-fault better aligned with the psychological and social realities of marital dissolution.[9]
1966: In 1966, California Governor Edmund G. Brown established the Governor’s Commission on the Family, which recommended elimination of fault grounds and set the stage for legislative action in California. Dorothy Kenyon, a notable lawyer and judge, chaired the Commission which argued that eliminating fault grounds would reduce conflict, lower the divorce rate by making the process less adversarial, and provide a more humane approach to marital discord.
Late 1960s: In 1967, the National Conference of Commissioners on Uniform State Laws (NCCUSL) began drafting a model no-fault divorce statute. This draft was part of the Uniform Marriage and Divorce Act. It also aimed to discourage “forum shopping” by creating a uniform template to apply across the nation in order to streamline the legal process.
1969: California became the first state to enact a no-fault divorce law in 1969. Assemblyman James A. Hayes, chair of the Assembly Judiciary Committee, introduced the divorce bill. He had divorced prior to championing the bill, which no doubt influenced his strong advocacy for the legislation.
The bill was signed into law by Governor Ronald Reagan on September 4, 1969. In The New Reagan Revolution, his son, Michael Reagan, says that his father eventually recognized his error and acknowledged that this was one of the worst mistakes of his political career.
1970s: Widespread adoption of no-fault divorce occurred across the nation with most states signing on by 1980. This change coincided with the Sexual Revolution. In some states, no-fault became the sole grounds for divorce; other states added no-fault as the default option among other existing grounds.
Some statutes required mutual agreement by both spouses, while others indicated that divorce could be granted by the unilateral petition of one spouse. Other statutes were ambiguous on the issue of consent. The notion of marital abandonment was also obscured by a no-fault provision based on expiration date: That the parties have lived separate and apart for x-number of years.
Despite “no-fault” being the colloquial term, the legal phrasing in states differed. The legal terms include “insupportability,” “incompatibility,” “irretrievable breakdown,” “irremediable breakdown,” and “irreconcilable differences.” In effect, these terms are interchangeable.
1990s-2000s: The landscape of no-fault divorce in America saw both reinforcement and resistance. During the 1990s, some failed attempts were made to repeal no-fault laws. Then came the introduction of more restrictive covenant marriage laws in Louisiana (1997), Arizona (1998), and Arkansas (2001). But couples could only opt into a covenant marriage from the start of the marriage. Discussions during this period often revolved around the impacts of no-fault divorce on marriage stability and the decline in the sanctity of marriage. Debates focused on converting unilateral no-fault divorce to mutual consent or introducing longer divorce waiting periods. Nevertheless, state legislatures and judicial decisions pressed ahead in doing exactly the opposite by ensuring that no-fault laws were applied unilaterally and swiftly.
2010s–2025: In 2010, New York became the last state to adopt some form of no-fault divorce. 10 Today, Mississippi and South Dakota are the only states that require mutual consent. All other states allow unilateral divorce on the petition of one spouse alone. There have been legislative attempts to repeal or modify no-fault laws in several states, including Texas, Oklahoma, South Carolina, and South Dakota. Some Republican party platforms in these states have also embraced an agenda to abolish or restrict no-fault divorce (Texas, Nebraska). Moreover, an increasing number of social and political commentators have spoken out to oppose to no-fault divorce, especially among young traditionalist listeners. Nevertheless, there have been no substantive changes in the law or culture that have resulted in concrete outcomes favoring the longevity of marriage.
Conclusion
Once anchored by collective values of family and community, American society over the last century has increasingly embraced a paradigm of radical individualism. No-fault divorce epitomizes this individualism by allowing one spouse to unilaterally end a marriage without justification, prioritizing personal desire over the bonds of marriage, family, and community. This transformation must be understood within the broader cultural context of economic prosperity and the sexual revolution that characterized the 1960s through the 1980s. It is also crucial to acknowledge the role of lawyers, judges, and legal scholars who pushed for legal expediency, often with less caution regarding the potential for adverse outcomes. As new generations emerge from the rubble of divorce, hookup culture, one-parent households, an abysmal dating scene, and fickle expectations of a Disney fairytale, young people are beginning to demand a genuine course correction. To understand our future, however, we must understand our past. This roadmap provides some insight into the historical antecedents of our present situation, and hopefully highlights the underlying assumptions that need to be addressed.
[1] Quigley, John. Soviet Legal Innovation and the Law of the Western World. Cambridge University Press, 2007.
[2] Their ideas led to the following policies which did not exist under Tsarist Russia: Replacing religious marriages with civil marriages; abolishing the status of “illegitimate” children; ensuring women’s rights to work, own property, control their own wages, vote, and hold public office; allowing judicial assignment of paternity, including collective paternity; Decriminalizing homosexuality; limiting inheritance rights by nationalizing all land; institutionalizing/mandating alimony awards.
[3] Hazard, John N. Communists and Their Law. The University of Chicago Press, 1969.
[4] In 1914-1917, Alexander Goikhbarg was a private associate professor of the department of civil law and legal proceedings, and taught family law at the Petrograd Higher Women’s Courses.
[5] J. A. B. The Soviet Family Code of 1918: A Historical and Legal Analysis. Journal of Family Law 33, no. 3 (1999): 521-553.
[6] While the literal translation suggests both conditions must be met, the conceptual translation indicates either is sufficient for divorce grounds.
[7] Quigley, John. Soviet Legal Innovation and the Law of the Western World. Cambridge University Press, 2007.
[8] The Lost History of No-Fault Divorces. JSTOR Daily, December 5, 2022, https://daily.jstor.org/the-lost-history-of-no-fault-divorces/
The Politics of Marriage and Divorce in Revolutionary Russia. Slavic Review 50, no. 4 (1991): 809-828, https://www.jstor.org/stable/26564622.
[9] Transitioning Through Divorce: The Six Types of Divorce. Oklahoma State University Extension, https://extension.okstate.edu/fact-sheets/transitioning-through-divorce-the-six-types-of-divorce.html.
[10] Although not technically termed no-fault, before adoption of no-fault divorce the New York divorce statute contained a provision allowing for divorce is the parties mutually agreed to a separation for a specified amount of time.
