Whether you call it no-fault divorce or unilateral divorce, the debate about how easy it should be to end a marriage is entering its fourth decade with no end in sight. Some argue that divorce doesn’t need to tie up the already overburdened courts and if people are not happy in a relationship or feel like they are in potential danger, they should be able to get out.
Others, like activist Maggie Gallagher, who heads a conservative Washington think tank
www.marriagedebate.com dedicated to reforming state marriage laws to make divorce more difficult to obtain, say no one wants people to stay in abusive relationships, but the ease with which one spouse can end a marriage without the consent of the other is a destructive force in society.
“The reason (the debate) continues is because people aren’t satisfied with the high rate of divorce or with a totally unilateral divorce system where one person can end a divorce as fast as the courts can process it,” she said recently.
“There isn’t yet any kind of agreement on what might be a better system. A lot of people are worried what changing the laws would mean – I mean the Bar Association for example is worried what that might mean and they are very influential in the state legislatures – and yet 40 years after no fault, we're still debating it because people are not happy with what the divorce system does or with the amount of divorce we have.”
HISTORY OF NO-FAULT DIVORCE
The divorce rate in the United States has been steadily climbing for decades and topped 55 percent in the mid-1990s before recently settling back down to where it is now – remaining steady at about 50 percent. According to most government statistics, that translates to about 1 million new divorces each year.
The first state to adopt laws that allowed one party to end a marriage without the consent of the other was Oklahoma in 1953, but then in 1970, California spawned a wave of similar legislation that is now almost universal in the United States.
There is still much disagreement on the definition of no-fault divorce. Some states that allow unilateral ending of divorces but restrict the allocation of assets are considered no-fault states. It seems fairly clear, however, that New York, remains as the only state left that doesn’t allow for some sort of unrestricted divorce. In New York, there is still a formal 1-year separation period required, but that may end soon as well. Legislation to delete that restriction was before the New York legislature this past summer but did not pass. It will likely be re-introduced again next year.
NEW AREAS OF DEBATE
So while it would seem that the battle lines over the letters of the laws have stabilized on the side of some sort of no-fault divorce, there are several new fronts in the debate that are emerging and likely to take a prominent role going forward.
One is what effect same-sex marriage will have on the debate as states begin to respond to the growing call for some sort of legal recognition of same-sex unions. Experts believe it will be some time though before the effects can be seen or measured. The other is more immediate and surrounds the debate about the long-term effects the rising divorce rate has had on children and society in general.
Since the rise in adoption of no-fault laws blossomed in the 1970s, there have been thousands of studies published surrounding the effects of divorce on children, and one thing has become fairly clear from those results: there is ample evidence to say that a high divorce rate can and does have an effect on children and thus society through higher poverty rates, more crime, economic instability and increased instances of mental health problems, among other things.
