Representative Keith Esau is currently promoting a bill in Kansas that would eliminate the no fault divorce option. Former gubernatorial candidate Ken Cucinelli proposed a similar measure in Virginia in 2008, as did GOP lawmakers in Iowa last year. These legislators and politicians argue that by forcing petitioners to name fault with their spouses as a condition of divorce, couples will be inclined to work out their differences, thus saving their children from the mess of a divorce and the accompanying emotional baggage. As Esau said, “No-fault divorce gives people an easy out instead of working at it.”
First of all, paternalistic arguments like these undermine freedom and personal autonomy and have been used to justify horrible initiatives like the Drug War, compulsory healthcare, and laws about junk food. Conservatives decry the “nanny state” as much as anyone, but treating two adults seeking a divorce like petulant teenagers and ordering them to “work it out” is a prime example of overreach.
It’s also an ineffective one. Prior to the existence of no fault divorce, couples regularly lied about one another’s wrongdoings to dissolve the marriage. And if one spouse was guilty of wrongdoing—such as adultery or domestic violence—the victimized spouse was left with the burden of proof. The elimination of that requirement through the no fault option might account for the significant drop in domestic violence and female suicides that followed each state’s implementation of no fault divorce. And while the divorce rate did rise after the widespread adoption of no fault divorce in the late 1970s, the national rate has actually gone down since 1981 and continues to decline. History professor and author Stephanie Coontz attributes the sharp rise and fall to the “pent-up demand for divorces” being met. Furthermore, experts attribute much of the emotional damage children of divorce endure to parental fighting as opposed to the divorce itself. In fact, children usually recover fairly quickly from divorce and do not experience long-term negative effects when high levels of conflict are avoided during the divorce process.
Aside from politicians’ “think of the children!” argument, some make the case against no fault divorce from a contractual standpoint. If one party wishes to leave a contract, the initiator is usually considered at fault and is required to compensate the other party in some way, such as a penalty fee for breaking a lease. Libertarian Inness Fleming argues that marriage is indeed an enforceable contract and asserts that there “…is no point in having the freedom to enter a contract if one cannot enforce the agreement or demand compensation for its breach.”
While marriage is a contract, and one with that usually comes with the assumption of permanence, the institution of divorce itself presumes the existence of a termination clause. Though most couples get married with every intention of lifetime commitment, they can also reasonably assume their legal right and that of their spouse to terminate if the relationship doesn’t work out.
And not all contract termination clauses come with the requirement of finding fault or providing compensation, as is demonstrated by termination for convenience clauses and most private employment arrangements. Provisions like these reflect our inability to predict any possible reasons we may wish to end a relationship in the future. No fault divorce applies the same reasoning to marriage. And while it would be preferable for marriage contracts to have clearly defined termination clauses that include irreconcilable difference, amending the current language of marriage contracts (or privatizing marriage) is a better option than eliminating the possibility to divorce without proving fault.
Of course, the difference between marriage and any other type of contract is that the relationship is based on a loving partnership, and the decision to enter or exit the relationship should never be taken lightly. When two people marry, they create a bond between themselves as well as their families, friends and any future children. Consequently, breaking that bond affects more than just the couple, so the mature choice is to put every effort into working out their difference before pursuing divorce.
But forcing people to choose between staying in relationships or finding legitimate fault with their spouses won’t prevent heartache; it’ll just exacerbate it. Adult relationships should be voluntary, and entering or leaving them always results in consequences. But the last thing a person wishing to end a relationship should be thinking about is how to convince the government that their decision is valid.