Portside

Before the 1960s, it was really hard to get divorced in America.

Typically, the only way to do it was to convince a judge that your spouse had committed some form of wrongdoing, like adultery, abandonment, or “cruelty” (that is, abuse). This could be difficult: “Even if you could prove you had been hit, that didn’t necessarily mean it rose to the level of cruelty that justified a divorce,” said Marcia Zug, a family law professor at the University of South Carolina.

Then came a revolution: In 1969, then-Gov. Ronald Reagan of California (who was himself divorced) signed the nation’s first no-fault divorce law, allowing people to end their marriages without proving they’d been wronged. The move was a recognition that “people were going to get out of marriages,” Zug said, and gave them a way to do that without resorting to subterfuge. Similar laws soon swept the country, and rates of domestic violence and spousal murder began to drop as people — especially women — gained more freedom to leave dangerous situations. 

Today, however, a counter-revolution is brewing: Conservative commentators and lawmakers are calling for an end to no-fault divorce, arguing that it has harmed men and even destroyed the fabric of society. Oklahoma state Sen. Dusty Deevers, for example, introduced a bill in January to ban his state’s version of no-fault divorce. The Texas Republican Party added a call to end the practice to its 2022 platform (the plank is preserved in the 2024 version). Federal lawmakers like Sen. J.D. Vance (R-OH) and House Speaker Mike Johnson, as well as former Housing and Urban Development Secretary Ben Carson, have spoken out in favor of tightening divorce laws. 

If this sounds outlandish or like easily dismissed political posturing — surely Republicans don’t want to turn back the clock on marital law more than 50 years — it’s worth looking back at, say, how rhetorical attacks on abortion, birth control, and IVF have become reality.

And that will cause huge problems, especially for anyone experiencing abuse. “Any barrier to divorce is a really big challenge for survivors,” said Marium Durrani, vice president of policy at the National Domestic Violence Hotline. “What it really ends up doing is prolonging their forced entanglement with an abusive partner.”

In the wake of the Dobbs decision, divorce is just one of many areas of family law that conservative policymakers see an opportunity to rewrite. “We’ve now gotten to the point where things that weren’t on the table are on the table,” Zug said. “Fringe ideas are becoming much more mainstream.”

Republicans in multiple states are eyeing divorce restrictions

Pushback against no-fault divorce dates back decades. In the 1990s and early 2000s, three states passed covenant marriage laws, allowing couples to opt into signing a contract allowing divorce only under circumstances like abuse or abandonment. Some backers of the laws intended them to send a larger anti-divorce message, the Maryland Daily Record reported in 2001. Speaker Johnson, then a lawyer in Louisiana, was an early adopter of covenant marriage, entering one with his wife Kelly in 1999. 

More recently, high-profile conservative commentators have taken up the anti-divorce cause. Last year, the popular right-wing podcaster Steven Crowder announced his own unwilling split. “My then-wife decided that she didn’t want to be married anymore,” he complained, “and in the state of Texas, that is completely permitted.”

That could change. As Tessa Stuart noted in Rolling Stone, the Texas Republican party controls both chambers of the state legislature and the governor’s office, and could likely make its platform — the one calling on the state legislature to “rescind unilateral no-fault divorce laws” — a reality if it chose. The Louisiana and Nebraska Republican parties have also considered or adopted similar language.  

And Ben Carson, secretary of housing and urban development under President Donald Trump who has been floated as a potential VP pick, wrote in his recent book that “for the sake of families, we should enact legislation to remove or radically reduce incidences of no-fault divorce.”

Ending no-fault divorce would have major consequences

Opponents of no-fault divorce argue that it is hurting families and American culture. Making divorce too easy causes “social upheaval, unfettered dishonesty, lawlessness, violence towards women, war on men, and expendability of children,” Deevers wrote last year in the American Reformer, a Christian publication. “To devalue marriage is to devalue the family is to undermine the foundation of a thriving society.”

It’s worth noting that though the no-fault laws initially led to spikes in divorce, rates then began to drop, and reached a 50-year low in 2019, CNN reports. But today, an end to no-fault divorce would cause enormous financial, logistical, and emotional strain for people who are trying to end their marriages, experts say. Proving fault requires a trial, something many divorcing couples today avoid, said Kristen Marinaccio, a New Jersey-based family law attorney. A divorce trial is time-consuming and costly, putting the partner with less money at an immediate disadvantage. It can also be “really, really traumatizing” to have to take the stand against an ex-partner, Marinaccio said.

There’s also no guarantee that judges will always decide cases fairly. In the days of fault-based divorce, courts were often unwilling to intervene in marriages even in cases of abuse, Zug said. 

No-fault divorce can be easier on children, who don’t have to experience their parents facing each other in a trial, experts say. Research suggests that allowing such divorces increased women’s power in marriages and even reduced women’s suicide rates. A return to the old ways would turn back the clock on this progress, scholars say.

“We know exactly what happens when people can’t get out of very unhappy marriages,” Zug said. “There’s much higher incidences of domestic abuse and spousal murder.” 

It’s unlikely that blue states would ban no-fault divorce, Marinaccio said, but if red states do, their residents would be stuck. Divorce laws generally include a residency requirement, which would make it difficult for people to cross state lines to get a divorce the way they sometimes do now to obtain an abortion. “Your state is the only access you have to divorce,” Marinaccio said.

Divorce is extremely common — more than 670,000 American couples split in 2022 alone. Any rollback to no-fault divorce would likely be politically unpopular, even in red states (some of which have higher divorce rates than the national average).

But perhaps emboldened by their victory in overturning Roe v. Wade, social conservatives have gone after other popular targets in recent months, from birth control to IVF. The drive to increase restrictions on divorce is part of the same movement, Zug said — an effort to re-entrench “conservative family values,” incentivize heterosexual marriage and childbearing, and disempower women. “They are all connected,” Zug said.

This story originally appeared in Today, Explained, Vox’s flagship daily newsletter. Sign up here for future editions.