Outside the Beltway

No Fault Divorce Laws Slightly Increase Divorce

James Joyner
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A new study by Maggie Gallagher’s Institute for Marriage and Public Policy finds that the passage of no-fault divorce laws “leads to an increase in the divorce rate on the order of 10 percent” for “about ten years.”

In an interview with Newsweek, Gallagher explains, “We examined every empirical study of no-fault-divorce rates in the U.S. and abroad, and in 17 of the 24 studies, there is a long-term increase in divorce rates after no-fault laws are implemented, most between 5 and 30 percent.” A press release sent me by iMAPP notes that “the effect of no-fault divorce laws on the overall divorce rate appears to fade over a long time period (around a decade).”

Gallagher explains to Newsweek, “It becomes easier to divorce, less penalized by law. Also, young couples see divorce is more common and the law is less certain, so they delay marriage and search harder for a better spouse. That’s why the impact of no-fault-divorce law tapers off after 10 years or so.”

And this is a bad thing because . . . ? Isn’t delaying marriage until you’ve found a mate with whom you’ll be compatible for the long term a good thing? And, absent children, what’s the advantage in forcing people to stay trapped in a bad marriage unless they can prove that their spouse has committed adultery, committed abuse, abandoned the marriage, or is otherwise “at fault”?

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14 responses to “No Fault Divorce Laws Slightly Increase Divorce”

  1. Triumph Avatar
    Triumph

    And, absent children, what’s the advantage in forcing people to stay trapped in a bad marriage unless they can prove that their spouse has committed adultery, committed abuse, abandoned the marriage, or is otherwise “at fault”?

    It gives the big-government “family values” crowd something to bloviate about.

  2. yetanotherjohn Avatar
    yetanotherjohn

    Do you have a problem with being up front about it and putting it in the wedding vows? Instead of

    “to have and to hold from this day forward, for better for worse, for richer for poorer, in sickness and in health, to love and to cherish, till death do we part: and to that I pledge you my faithfulness.”

    we change it to “I here for you as long as I want to be and then we split things down the middle and go our separate ways”.

    Or perhaps you prefer increasing mendacity and want to have your cake and eat it too.

  3. Andy Avatar
    Andy

    Interestingly, but not particularly surprisingly, it’s the virtuous christian red staters who get divorced at a higher rate than those heathen blue state folks…

  4. Triumph Avatar
    Triumph

    Do you have a problem with being up front about it and putting it in the wedding vows?

    No, the problem is that it is none of your or the government’s business.

  5. James Joyner Avatar
    James Joyner

    Do you have a problem with being up front about it and putting it in the wedding vows?

    If the state’s going to be involved in marriage, I actually rather like the Covenant Marriage concept that’s catching on. It’s entirely too damn easy to get married on a whim.

    Given that people make rash decisions, though, the question is what to do about it. Frankly, if there are no kids involved, I largely say, “No harm, no foul.” With kids, it’s a hell of a lot more complicated.

  6. yetanotherjohn Avatar
    yetanotherjohn

    I’m not familiar with the covenant marriage concept. My problem is with the people who want a ‘Christian’ front end to the marriage but a secular, easy-out back end. If they are up front about what they are agreeing to and keep it secular, then I agree that absent kids they should be able to get out of the marriage on whatever terms they agreed to up front.

  7. James Joyner Avatar
    James Joyner

    My problem is with the people who want a ‘Christian’ front end to the marriage but a secular, easy-out back end.

    But that’s really two separate issues, one church, one state. I don’t have trouble with a church that excommunicates or otherwise penalizes members who violate religious teachings on marriage. The state, on the other hand, really has no interest in that aspect of the issue.

  8. Beldar Avatar
    Beldar

    You’ve got to identify the historical progression, and then run your policy preferences separately.

    The original “must have fault” (i.e., must show adultery or mental cruelty or abandonment or refusal of sexual privileges) laws had as their intention making divorce very difficult, in order to discourage divorces and artificially prolong marriages in situations in which they’d otherwise not have continued.

    In many states, the change to “no fault” divorce was accomplished more or less simply by adding a condition that’s so easy to meet as to be meaningless. In Texas, for example, it’s section 6.001 of the Texas Family Code:

    On the petition of either party to a marriage, the court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.

    That breaks down to, “At least one of us thinks we’re just not getting along and it’s not likely to get any better.”

    Stigma having been removed from the equation, the only disincentive becomes whatever inconvenience or financial blow may come from the property division (“Oh, damn, well, neither of us can afford to buy out the other so we’re going to have to sell the McMansion.”)

    But if you think it’s an appropriate policy to promote, then it’s entirely possible to tweak the law in other ways — in an attempt to serve the goal of discouraging “casual divorce on demand” — without re-adding a stigmatizing precondition as a break-up requirement.

    I happen to think that “casual divorce on demand” has been catastrophic, mostly (but not entirely) because of its impact on children — despite the essentially open-ended power of family judges to assess financial obligations and order particular access and visitation plans in whatever manner they deem in the best interest of minor children. (Minor children aren’t the only ones hurt by divorce, but they’re the only ones whom the law grants any status as being worthy of court protection.) I believe that some substantial percentage of “savable” marriages are being busted up now that could properly and profitably (in every sense, including financial and emotional) be maintained were the parties incentivized to try harder, longer.

    I’m therefore very open to ideas for ways to strengthen the bonds of marriage and to disincentivize “casual divorce on demand.” Longer waiting periods, both to get married and to get divorced seem to me to be a good idea. An even longer time-out for re-marriage strikes me as useful too.

    And I’m generally receptive to crafting tax and benefit policies to discourage splits and to encourage marriages (including among gays, but I arbitrary cut off at two people because of the potential for abuse). A pure libertarian argument — “This is an area where the government has no business telling us what to do” — is theoretically attractive, but attaching some strings and providing some rewards is appropriate in a society that’s committed to spending money on your child, health, and elder care, so short of manditory sterilization and tatooing foreheads with “Do Not Treat at ER” labels, I don’t see opting out entirely as practicable.

    The benefits and rewards ought to be content neutral in the sense that they’re not required to be linked to, for example, religiousity; but neither should they inhibit coordinated programs that include that (or other ethical and moral matrices).

    Way, way too many families ARE broken, and it’s creating stresses on society that affect everyone. We can’t legislatively mandate that Every Family Shall Be The Cleavers, but we need to cautiously experiment with ways to improve them. Getting the moral stigma out of the divorce law was fine, but we need to find ways to compensate for the loss of the indirect beneficial effects that attended that system.

  9. Triumph Avatar
    Triumph

    Covenant Marriage concept that’s catching on. It’s entirely too damn easy to get married on a whim.

    This “Covenant” business is a joke.

    From the point of view of the state, marriage is simply a contract between two people.

    Putting more restrictions on two private parties who voluntarily want to enter into an agreement is typical big-government “conservatism” at its worst.

    You may think that it is “entirely too easy to get married on a whim,” James, but given the private nature of marriage, I am not sure how that is relevant for discussions of public policy.

  10. Billy Avatar
    Billy

    A new study by Maggie Gallagher’s Institute for Marriage and Public Policy finds that the passage of no-fault divorce laws “leads to an increase in the divorce rate on the order of 10 percent” for “about ten years.”

    This is completely chicken/egg, as many other studies have repeatedly demonstrated over the last 35 or so years of no-fault divorce history. Does the availability of no-fault divorce cause divorce? Or did the increase in a desire to divorce coupled with societal changes that tended to lessen the stigma of divorce and allowed for more empowerment of single women lead to no-fault divorce in the first place? One more study from an obviously interested party will not change the fact that there is no real answer to this question, though most reputable scholars I’ve read on the subject definitely lean toward society as the driver of policy and not vice-versa.

    If the state’s going to be involved in marriage, I actually rather like the Covenant Marriage concept that’s catching on.

    My understanding is that even where it’s allowed, a very small percentage of people actually choose to opt in to covenant marriages. And who can blame them, really? Why would you purposely throw more legal roadblocks in your way than you absolutely must? They certainly don’t make the actual marriage any happier…

    The original “must have fault” (i.e., must show adultery or mental cruelty or abandonment or refusal of sexual privileges) laws had as their intention making divorce very difficult, in order to discourage divorces and artificially prolong marriages in situations in which they’d otherwise not have continued.

    Just to add to this, many “fault” divorces were the result of fault that was manufactured either by one party or by collusive couples who sought to end their marraige in the only way possible. All this really accomplished was to add stigma to the eventual divorce, and to perpetuate a legal fiction that had no bearing on the actual lives of the couple or their children.

    An even longer time-out for re-marriage strikes me as useful too.

    Gonna need a constitutional amendment, or a very, very different judiciary for that one to be meaningful; I agree it’s a good idea, but if there are children already involved, it really doesn’t help them to do so anyway.

  11. Stormy Dragon Avatar
    Stormy Dragon

    >And, absent children, what’s the advantage in
    >forcing people to stay trapped in a bad
    >marriage unless they can prove that their
    >spouse has committed adultery, committed abuse,
    >abandoned the marriage, or is otherwise “at
    >fault”?

    If divorce were simply the end of the marriage, there would be no harm, but considering that the husband is often expected to support the wife even after the divorce, as well as the wife receiving the more generous portion of the assets, I can see a problem.

    I can’t tinking of of any other contract where one of the parties can walk away from the contract any time the like, at which time the other party is financially punished for the contract being disolved.

  12. James Joyner Avatar
    James Joyner

    You may think that it is “entirely too easy to get married on a whim,” James, but given the private nature of marriage, I am not sure how that is relevant for discussions of public policy.

    Because marriage isn’t a purely private enterprise. It is, by current practice, a legal status conferred by the state which create a set of legally enforced advantages and obligations.

    It’s not unreasonable to me, then, that the state erect barriers to getting married comparable to, say, getting a license to operate a hot dog stand or add a new room onto the house.

    I’m not necessarily advocating “covenant marriage” or any particular change to current public policy. My general instincts on how these things ought work is conservative but my inclination on what the state should do to make it happen is libertarian.

  13. Triumph Avatar
    Triumph

    Because marriage isn’t a purely private enterprise. It is, by current practice, a legal status conferred by the state which create a set of legally enforced advantages and obligations.

    Perhaps, then, it would be better–from a policy perspective–to concentrate on separating some of the legally enforced advantages and obligations from marriage?

    For instance, I know a couple who both no longer want to be married. Each party is in agreement that their “relationship” is over and want to move on.

    However, because one of the individuals has a chronic medical condition and needs access to decent health care. His employer has a crappy plan while hers has a decent health plan. The two are remaining legally married–even though they no longer live together–only because of the legally enforced advantages you speak of.

    If we had some other way of rationing health care, in this instance, each party would be accorded more freedom to make choices in the mutual interests of both parties.

  14. James Joyner Avatar
    James Joyner

    If we had some other way of rationing health care, in this instance, each party would be accorded more freedom to make choices in the mutual interests of both parties.

    Sure. The current system is broken; I don’t think there’s much doubt about that. The problem is finding a substitute system that doesn’t disadvantage a whole lot of people.

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