This system began to crumble during the 1960s. In 1969, California became the first state to legalize no-fault divorces — permitting divorce without requiring proof of wrongdoing such as adultery — in the Family Law Act, signed by Gov. Ronald Reagan. Within a decade, 45 other states had joined California. By 1985, 49 states had legalized no-fault divorce; New York did just four years ago.
No-fault divorce has been a success. A 2003 Stanford University study detailed the benefits in states that had legalized such divorces: Domestic violence dropped by a third in just 10 years, the number of husbands convicted of murdering their wives fell by 10 percent, and the number of women committing suicide declined between 11 and 19 percent. A recent report from Maria Shriver and the Center for American Progress found that only 28 percent of divorced women said they wished they’d stayed married.
Yet the conservative push for “divorce reform” is finding sympathetic ears in statehouses, where Republican lawmakers have regularly introduced bills to restrict the practice. Their rationales range from the biblical (God bemoans divorce in Malachi 2:14-16) to the social (divorce reduces worker productivity) to the financial (two households are more expensive to maintain than one). Leading conservatives such as Sen. Marco Rubio (R-Fla.) and Rep. Paul Ryan (R-Wis.) have also argued that marriage is a solution to poverty.
The cause earned national support in 2011 when three Republican presidential candidates — Texas Gov. Rick Perry, Rep. Michele Bachmann (Minn.) and Santorum — signed a pledge from the Family Leader, a conservative organization in Iowa, that urged “cooling-off periods” for people seeking what it called a “quickie divorce.” Last year, seven GOP lawmakers in Iowa introduced HF 338, which would have prohibited no-fault divorces for couples who have children under 18. Under the bill, parents could divorce only in cases of adultery, imprisonment due to a felony, abuse, abandonment or if the couple has been separated at least two years. The lead sponsor, Rep. Tedd Gassman, argued that this bill would “ensure that divorce is not the first option for married couples with children.”
While some studies show that children of divorced parents do experience worse life outcomes — including diminished math and social skills, a higher chance of dropping out of school, poorer health, and a greater likelihood of divorce themselves — Stanford sociologist Michael Rosenfeld points out that there is no way to test definitively whether children of divorced parents were already more likely to experience such outcomes. And as Stephanie Coontz, a historian and the author of “Marriage, a History,” explains, what’s most critical is the high-conflict environment that kids grew up in before their parents separated.
Ultimately, HF 338 failed last year not because of its content but because of bizarre public comments Gassman made. The lawmaker argued that with divorced parents, teenage girls would be “more promiscuous.” He also linked divorce and the shootings in Newtown, Conn., blaming the shooter’s mind-set on “family problems.” Wary of controversy, GOP leaders dropped the bill.
At least a dozen other states since 2011 have tried to make divorce more difficult. Along with Iowa, New Hampshire and Oklahoma have tried to eliminate no-fault divorce for parents. In Oklahoma, lawmakers are also considering a bill that would virtually prohibit no-fault divorce but preserve divorce as an option in cases of “impotency.” Other states are pushing legislation to lengthen the waiting period before a judge can grant a divorce, including up to two years in North Carolina. Currently, most states have a two- or three-month waiting period before a divorce is finalized, though it is longer in a handful of mostly Southern states, including Louisiana, North Carolina, South Carolina and Virginia.
Such waiting periods are “fairer to the spouse who is being left,” the Family Research Council contends in a brochure titled “Deterring Divorce.” But inherent in that argument is an unfortunate and unavoidable reality: Making divorce less accessible harms women most. The right to divorce was a victory women fought for in the culture wars of the 1970s, and women today are twice as likely as men to ask for a divorce, according to Rosenfeld.
For more than a decade, three states have tested the appeal of more-restrictive divorces. Louisiana was the first, in 1997, to pass a “covenant marriage” law, which allows marrying couples to choose between a standard license (allowing no-fault divorce) and a covenant license (heavily restricting the reasons a couple may divorce). Arizona and Arkansas soon followed. If social conservatives were looking to show that no-fault divorce was unpopular, they could not have picked better testing grounds than these three deep-red states.
But the experiment has proved disastrous for their cause. Between 2000 and 2010, there were 3,964 covenant marriages in Louisiana — roughly 1 percent of the 373,068 marriages performed in the state. The rates were even lower in Arizona and Arkansas. Nevertheless, state legislators are undeterred: Since 2011, lawmakers in Alabama, Mississippi, Oklahoma, Texas and Kansas have tried to enact covenant marriage.
Would making divorce less accessible encourage partners to stay together, as conservatives hope? Probably not. Waiting periods and mandatory classes “add a new frustration to already frustrated lives,” Rosenfeld notes. In other words, a cooling-off period isn’t cooling anybody off.
More problematic, these roadblocks “could easily exacerbate the situation and harm kids,” Coontz says, noting that divorcees are “more likely to parent amicably if they haven’t been locked into a long separation process.”
The push to restrict divorce is a form of paternalism — expanding government in pursuit of socially conservative ends. Marriage is a conservative institution, the thinking goes, and married straight couples provide a backstop against the creep of government. Any public policy that encourages the creation and persistence of married straight couples therefore merits support; any policy that deviates, including same-sex marriage or no-fault divorce, is hostile to the institution.
The Family Research Council sees no contradiction in the state playing an active role in such private decisions. “As the grantor of both marriage licenses and divorce decrees, the state has already established the right to regulate the disbursement of each,” argues Peter Sprigg, senior fellow for policy studies at the council.
But if new divorce restrictions fail to pass, it may be for a self-interested reason: Republicans get divorces, too. Two of the five states with the highest percentages of divorced residents are red states. In Oklahoma, the state with the largest share of women who have been married three or more times, Republican lawmakers killed a 2010 bill making divorce more difficult to obtain. “How far do I want government to come into my home and your home about private personal matters?” asked GOP Rep. Leslie Osborn.
And if conservatives actually believe that divorcing couples might have a change of heart, there’s another solution besides longer waiting periods: remarriage. However, only about 6 percent of divorcees ultimately remarry each other. Reconciliation certainly happens; divorce doesn’t have to be forever. But it’s impossible to pass legislation that stops spouses from lying or cheating.
Alabama: A bill under consideration would mandate a four-hour class for divorcing parents with children younger than 16.
Arizona: A law passed in 2011 enables one party in a divorce to extend the process by up to four months.
Georgia: A bill under consideration would mandate classes for parents seeking to divorce.
Iowa: A bill that failed last year would have prohibited no-fault divorces in most cases for couples with children under 18.
Kansas: A bill under consideration would effectively eliminate no-fault divorce.
Louisiana: A law that went into effect in 2007 extended the waiting period for parents from six months to one year.
New Hampshire: A bill voted down in February would have gotten rid of no-fault divorce for parents of minor children.
