Heidi Stevens: Is rolling back no-fault divorce really the way to preserve and protect marriage? A marital historian weighs in
When the U.S. Supreme Court reversed Roe v. Wade in June 2022, overturning the constitutional right to an abortion, analysts predicted a wave of socially conservative legislation, particularly laws that chip away at women’s rights to individual freedoms.
No-fault divorce is frequently cited as the next logical territory to roll back.
“The drive to increase restrictions on divorce is part of … an effort to re-entrench conservative family values, incentivize heterosexual marriage and childbearing, and disempower women,” writes Anna North in a recent Vox piece, “The Christian right is coming for divorce next.”
No-fault divorce has been on the books for more than 50 years — first signed into law in California by then-Gov. Ronald Reagan in 1969. By 2010, all 50 states had no-fault divorce options, which means couples across the U.S. can obtain a divorce without one party having to allege or prove that the other party is to blame. The rise of no-fault divorce is linked to a significant drop in rates of intimate partner violence, spousal murder and female suicide.
But opponents view the option as anti-family, making the dissolution of a sacred tradition all too expedient and tearing apart the moral fabric of society along the way.
“The socially conservative, and often religious, right-wing opponents of such divorce laws are arguing that the practice deprives people – mostly men – of due process and hurts families, and by extension, society,” Eric Berger writes in a new piece in The Guardian. “Republican lawmakers in Louisiana, Oklahoma, Nebraska and Texas have discussed eliminating or increasing restrictions on no-fault marriage laws.”
In his new book, “The Perilous Fight: Overcoming Our Culture’s War on the American Family,” former Trump Cabinet member and potential Trump running mate Ben Carson says this:
“The reason this matters is that no-fault divorce legally allows marriages to end much more quickly than in previous decades,” he continues. “When there are relatively few legal or financial consequences connected with divorce, it’s natural for people to gravitate toward that option when their marriage hits a rough patch.”
But is making it more financially, emotionally and logistically onerous to exit an institution the way to preserve and protect the health and well-being of that institution? Or, more importantly, the health and well-being of the people who inhabit it?
The decision — and the desire — to marry is such a wildly individual, personal, messy, beautiful, hopeful process. It’s also pretty universal. We aspire to marriage and revere marriage and show up for marriage and celebrate marriage across party lines, across gender lines, across geographic lines, across demographic lines, across faiths. Those of us on the side of equality fight for more people, not fewer, to have access to it.
Because when it works, there’s nothing like it.
So I wonder, as we consider how and whether to legislate all the aspects of marriage, including how to end one, if we can debate what’s best for the institution and the people within it without falling lazily into left and right camps.
I called social psychologist Eli Finkel, author of “The All-or-Nothing Marriage: How the Best Marriages Work,” to get his thoughts. Finkel’s book and ongoing research look at how marriage has evolved over the centuries from a pragmatic, often transactional agreement to a partnership of equals, rooted in and sustained by love and sentimentality.
“As we have increasingly prioritized individual satisfaction and personal growth as one of the major things we should get from marriage — the idea that marriage is about bringing out the best version of each other, the idea that you’re best friends, ideas that would have seemed laughable in Hester Prynne’s era — we’ve made the average marriage much more difficult to maintain,” Finkel said.
We ask more of it. We expect more from it. We give it more boxes to check and feel let down when it fails to.
“But the benefit,” Finkel says, “comes from the fact that in our quest for something deeper—a deeper sort of connection, personal growth, authentic love — we’ve put within reach a concept that wasn’t even on offer for most of history.”
In fact, Finkel writes in his book: “The best marriages today are better than the best marriages of earlier eras. Indeed, they are the best marriages that the world has ever known.”
Is that, in part, because we’ve made it less mandatory — for social acceptance, for financial stability, for the right to move out of your parents’ house — to enter into marriage? That marriage is, for the most part, something you enter because you want to, not because you have to? And would marriages today remain better than marriages of earlier eras if we made them harder to leave?
These are difficult questions to answer empirically, Finkel said. We’d be guessing.
But, he maintained, a life of self-fulfillment and personal growth can also be a life that builds and sustains things even when they’re hard. In which case, modern marriage feels less like a fragile house of cards we need to lock people into, lest it all come tumbling down.
“The emergence of no-fault divorce was crucial for ensuring that people aren’t subjected to marital horror,” Finkel said. “And yes, I’m including violence, but I also mean deep, deep dissatisfaction and no escape from it. Reducing the likelihood that people would have to endure that is a monumental achievement, and I would never want to roll that back.
“Doing so,” he continued, “would reinstate a paradigm in which people are forced to endure years and decades of deep and profound unhappiness. I can’t really come up with a reason why America in 2024 would be pushing in that direction.”
It’s possible the rollback of no-fault divorce may even dissuade people from entering marriages in the first place. Declining birth rates across the globe are all the evidence we need that it no longer works to tell people, “Do the thing you’re expected to do, no matter how taxing it is to your finances, your fulfillment, your well-being.”
Happiness matters. It seems to me we evolve our institutions to keep up with our own desire for growth and fulfillment, rather than trap people into situations they want out of.
“In an effort to save marriage,” Finkel said, “we may marginalize marriage even further.”
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