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Conservatives in red states turn their attention to ending no-fault divorce laws


Some conservatives, including high-profile commentators and Republican state lawmakers, have set their sights on ending or restricting no-fault divorce laws. These laws are on the books in all 50 states. No-fault divorce allows anyone who wants to end their marriage to do so without blaming their spouse for doing anything wrong, like adultery or domestic abuse. But critics of no-fault divorce say it undermines the sanctity of marriage and hurts men. We're joined now by Joanna Grossman. She's a law professor who specializes in family law at Southern Methodist University's Dedman School of Law. Professor Grossman, welcome to the program.

JOANNA GROSSMAN: Thank you for having me.

RASCOE: So can you start by reminding our listeners of the history of no-fault divorce?

GROSSMAN: Sure. So for most of history in the U.S., we had something called fault-based divorce - right? - the opposite. And that was basically the state decided whether a marriage was bad enough to justify a divorce. Different states had different grounds, sometimes, including things like cruelty or excessive drinking or imprisonment. But the key to that system was the person who wanted the divorce had to themselves be innocent? They had to accuse and prove that the other spouse had committed something on the list? And that all went by the wayside starting with California in 1969, when states realized that that was really a very artificial way of thinking about marital breakdown and also really inconsistent with our ideas of what happy marriage is.

RASCOE: Well, what happened after no-fault divorce went into effect?

GROSSMAN: What we saw was a decrease in female suicide. We saw a decrease in domestic abuse of wives. We saw a decrease in homicide of women by intimate partners. And we also saw generally, people feeling more able to control their lives - right? - that they were not stuck in unhappy marriages. So we did see an increase in the divorce rate initially, but since then, the divorce rate has pretty steadily declined.

RASCOE: Well, so some Republicans in a few red states, including Louisiana, Texas, Nebraska and Oklahoma, want to end or limit no-fault divorce in their states. If they were able to do that, what would it mean for people in those states who want to get divorced?

GROSSMAN: Yeah, so luckily, because we had fault-based divorce for so long, we have good information about what happens in that system, right? So a lot of people would simply cheat to get divorces that the law says they're not entitled to. So two people who wanted to get divorced would simply agree, right? You're going to say I committed adultery, and then we'll get a divorce on grounds of adultery. We'll see the rise of divorce tourism, which we saw in that earlier era. Most states would not get rid of no-fault, so we'll see people traveling to establish residency in those easier states. And then we will see some people who are just stuck - right? where the inability to get divorced is used as a way to trap people in bad marriages. And unfortunately, what we also know is that will mostly be women.

RASCOE: Well, and we should clarify that this has not been formally adopted by the GOP. But there are leaders in the party who've come out against no-fault divorce, including Speaker of the House Mike Johnson, Ohio Senator J.D. Vance. Talk to me about this sudden focus on the specific statute in family law.

GROSSMAN: I think it's really part of the same kind of culture wars that are being waged by the GOP both at the state level and at the federal level, right? So the same people who are cheering the repeal of Roe v. Wade and the elimination of protection for abortion rights, those are the same people who want to get rid of no-fault divorce. And a lot of these things are tied together by just sort of nostalgia for some kind of traditional conservative values that they think were in place in the '50s and '60s. But what they really like about that simpler time is the patriarchal component.

RASCOE: Well, so in your view, do you think that this effort by some conservatives to get rid of no-fault divorce - do you think it has legs, or is this more of a talking point?

GROSSMAN: I think it's hard to say. I think five years ago, I would have said, there's no way one of these bills would pass because it's sort of too ridiculous and doesn't make any sense. But I've seen things pass in the past couple of years that I would have classified as kind of equally implausible. I think this is less likely to pass because it would really wreak havoc on the family court system, right? It would add just tremendous cost and delays to an average divorce, and that will affect not only the parties, but also judges and lawyers and the entire court system. So I do think there'll be some institutional pushback to this effort that we wouldn't see with some of the other kind of culture war issues.

RASCOE: That's Joanna Grossman. She is a law professor at Southern Methodist University's Dedman School of Law. Thank you so much for speaking with us.

GROSSMAN: Oh, my pleasure. Transcript provided by NPR, Copyright NPR.

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Ayesha Rascoe is a White House correspondent for NPR. She is currently covering her third presidential administration. Rascoe's White House coverage has included a number of high profile foreign trips, including President Trump's 2019 summit with North Korean leader Kim Jong Un in Hanoi, Vietnam, and President Obama's final NATO summit in Warsaw, Poland in 2016. As a part of the White House team, she's also a regular on the NPR Politics Podcast.