No-Fault Divorce in the Crosshairs

Although there does yet not appear to be a nationwide push to do away with no-fault divorce laws, the Washington Post notes that they may soon be under threat in particularly conservative states:

While there is a constitutional right to marry, there is no constitutional right to a divorce -- which means divorce laws will never come before a federal court, said Margaret Ryznar, a visiting professor at Brooklyn Law School and editor emeritus of the Family Law Blog.

"The state legislatures can write or amend the divorce laws like they would any other state law," Ryznar said. "The good news is that no federal election or presidential election can impact that directly because there's no federal constitutional issue." [bold added]

And the bad news is the "good" news here -- just look what happened with abortion after Dobbs made what should be a federally-protected right up to the states.

No-fault divorce is currently legal in every state, but Republicans in several states have toyed with eliminating it or placed verbiage in favor of limiting it into their party platforms:

Image by Jacob Truedson Demitz, via Wikimedia Commons, public domain.

The Nebraska GOP platform states that no-fault divorce "should be limited to situations in which the couple has no children of the marriage," while the Texas GOP says the legislature should "rescind unilateral no-fault divorce laws."

In Louisiana, the Republican State Central Committee last year considered a resolution to do away with no-fault divorce. An Oklahoma lawmaker introduced a bill in January to eliminate the option of no-fault divorce, while a South Dakota lawmaker has repeatedly tried since 2020 to remove irreconcilable differences as grounds for divorce.

Thus far, the bills have gained little traction; the latest bill sponsored by state Rep. Tony Randolph (R) was killed by South Dakota's House Judiciary Committee in February by an 11-2 vote. Randolph did not respond to The Washington Post's request for comment Thursday on whether he would introduce another bill next session.

In addition, several states already have so-called "covenant marriages" -- which are harder to end than typical marriages -- encoded into law as an option for newlyweds.

However accurate J.D. Vance's busybody complaint about people "changing spouses like they change their underwear" may or may not be, contractual agreements between consenting adults -- of which marriage is a type -- are no business of the government beyond enforcement of their terms and adjudicating disputes.

Contrary to the wishes of incipient theocrats like Vance, the government has no business dictating the terms of marriage contracts. When Ronald Reagan signed no-fault divorce into law as governor of California, it was an imperfect step in the right direction regarding government involvement in marriage.

The GOP seems likely to do a complete 180 from what a liberty-respecting party should be doing: finding a way to limit the government's role in marriage to what it would properly be in any other contract.

-- CAV