One need not scroll too far down any news or social media feed these days to find a conservative diatribe against no-fault divorce. The issue was thrust into the news recently after Steven Crowder, a provocateur who prides himself on stirring up trouble on college campuses, publicly bemoaned the fact that his wife was “allowed” to divorce him. He likes to plant himself in the middle of a campus with a sign that says “Male Privilege is a Myth: Change My Mind,” or “Hate Speech isn’t Real: Change My Mind.”
In a recent episode of his show “Louder with Crowder,” however, he talked about his own marriage, which recently ended in divorce. He complained that he has been living with a “proverbial boot on his neck” since his wife filed for divorce in 2021.
I have been living through what has increasingly been a horrendous divorce. Let me say from the outset, to be clear, there was no infidelity or any kind of physical abuse on either side. And no, this was not my choice. My then-wife decided she didn’t want to be married anymore. And in the State of Texas, that is completely permitted. It’s been the most heartbreaking experience of my life, what I consider to be my deepest personal failure. . . . Children need a mom and a dad, and divorce is horrible. But in today’s legal system, my beliefs don’t matter. In Texas, divorce is permitted when one party wants it, period.
In his view, apparently, his wife should be forced to stay married to him against her will unless she can prove he committed some kind of marital fault that would have justified a divorce in the olden days. In this column, we will explain that while he’s right that Texas law permits her to obtain a divorce over his objection, the fault-based system of divorce that he and other conservative men long for was an unmitigated disaster that was rejected by all fifty states decades ago for reasons that have nothing to do with feminism or rejection of patriarchal control. It was a broken system that relied on perjury and fabricated evidence to bridge the gap between the law’s strict approach to divorce and the social demand for choice and self-determination. But today, perhaps counterintuitively, no-fault divorce also serves as one form of protection for spouses who experience abuse.
A Brief History Lesson on Fault-Based Divorce, Then and Now
The calls to repeal no-fault divorce are not just the province of internet trolls and provocateurs. GOP legislators, including in Texas, have introduced actual bills to follow through on these threats. But what every conversation is lacking, perhaps not surprisingly given the people who are talking, is any knowledge of history—what fault-based divorce was like and why it was uniformly abandoned across the country in the 1970s.
Controversy about divorce laws is as old as this country. The legal process of attaining a divorce and society’s view of divorce have both changed dramatically over the centuries. In line with those changes, traditional and cultural norms related to the family and marriage have evolved to meet a world where resources are more easily available and transferable, and we have come to value more significantly an individual’s right to happiness and personal satisfaction.
American divorce law has its roots in England, where the only way to obtain a divorce before 1857 was through an act of Parliament that would dissolve a particular marriage. In the colonial days, the approach was similar in this country, making divorce available only to the very wealthy or politically connected. But in the wake of American Independence, some states began passing laws to allow for “judicial” divorce—the type of divorce we have today where a judge has the authority to decide whether to dissolve a marriage. Eventually, every state passed such a law.
These laws provided for divorce only upon proof of fault—and not just any fault, but an enumerated ground of fault found in the divorce statute. These grounds represented the legislature’s view of which types of marital problems were sufficient to justify dissolving the marriage. The grounds varied from state to state; adultery was always on the list because it was considered the only biblically justified ground for ending a marriage. Other common grounds were neglect, abandonment, extreme cruelty, intemperance, and lengthy imprisonment.
Fault-based divorce laws had other features that would seem strange today. Divorce proceedings had to take an adversary form—one party had to allege and prove marital fault, and the other party had to either contest it or not appear at all, no matter what their personal preferences were about getting divorced. There was no such thing, at least theoretically, as consensual divorce. Moreover, the party alleging fault had to themselves be innocent. Divorce was a remedy granted only to a party who deserved the court’s help. If the responding party counterclaimed and proved that the petitioner also committed fault, the divorce had to be denied under the defense of recrimination. The punishment for a truly bad marriage was staying married. Divorce was also supposed to be denied if there was evidence that one party had forgiven the other for marital fault, or if the parties had colluded to make it appear as if fault had occurred when it hadn’t.
Despite these rules, couples often colluded to attain a divorce the state did not want them to have and divorce became increasingly easy to obtain. Every study of divorce, including in the 1930s and 1940s, showed that collusion was the norm. Couples worked together to fabricate grounds, and lawyers, judges, and court reporters either participated or looked the other way. This was especially true in states with limited grounds, such as New York, which only allowed divorce on grounds of adultery. There, an entire cottage industry had developed to fabricate evidence of adultery that could be used in divorce court.
Without any changes in the law, the divorce rate rose steadily throughout the second half of the nineteenth century and through the twentieth century. The system simply could not withstand the changing social realities—ideas about marriage were changing, expectations were rising, and marital disappointment was more common. Beginning around 1850, historians note a shift from a transactional view of marriage, born of the necessity to exchange services and share burdens in order to survive, to companionate marriage, which saw the emotional and sexual core of marriage as its defining characteristics. The vision of marriage shifted again in the 1960s to so-called “expressive marriage,” in which marriage had to make room for personal fulfillment of each spouse and satisfy their individual desires. As Stephanie Coontz has argued, this puts a lot of pressure on marriage that it might not withstand. While it can be tempting to view high divorce rates as a sign that people don’t value marriage, the better reading is the opposite—that people value good marriages and do not want to be stuck in bad ones. Divorce, after all, paves the way for remarriage.
As a legal matter, fault-based divorce came crashing down in the 1970s. California led the way, with a commission report finding that the system was completely and utterly broken. Judges and lawyers were suborning perjury, the law was applied with a communal wink, and marriages were dissolved because the parties wanted them dissolved. The system lacked integrity and made a mockery of the rule of law. It was also bad for married people in many cases because one party could often trap the other in a bad marriage by counterclaiming on other grounds, which might lead the court to deny the divorce on grounds of recrimination.
At the same time, social scientists and psychologists were also coming to new understandings about relationships and marriage; interpersonal romantic relationships were intricate and dynamic, and when they ended, it was completely inaccurate to simply point the blame at one partner. Some marriages with fault can be saved, and some marriages without a legally recognized type of fault cannot.
The California Commission on the Family recommended that the fault-based approach be replaced with a no-fault divorce law, under which marriages that had become irretrievably broken could be dissolved, regardless of who did what to whom. The Commission also recommended that the family court system offer therapeutic services in the hopes that not everyone who began the divorce process would end up getting divorced—in some cases, the court would end up helping to save the marriage.
The California legislature followed the first recommendation but not the second. It repealed all the fault-based grounds for divorce and provided that divorce could be granted upon proof of “irreconcilable differences.” By 1985, every other state had adopted at least one no-fault ground for divorce. Some used substantive standards like California’s to assess failed marriages; others required a lengthy period of separation that would justify the inference that the parties would not reconcile. Some states retained fault-based grounds as an option; others simply replaced one system with the other. In states that have both, fault-based divorces are relatively rare.
The adoption of no-fault grounds has not led to more divorce. Rather, it has led to more efficient divorce. In fact, the national divorce rate has fallen from around 23 divorces per 1000 married couples in 1980 to less than 15 per 1000 in 2019. The U.S. hit a 50-year low in the divorce rate in 2019. Moreover, 95% of those divorces have settled out of court. This system has freed couples from the adversarial and contentious nature of fault-based divorce, as well as from the artificial placing of blame on a single act of misconduct when marital failure is almost always due to a complex set of factors. The no-fault system is less stressful for children whose parents are in the process of getting a divorce. Time and time again, studies have found children of high-conflict marriages actually benefit from divorce, and that higher rates of stress on children before and during parents’ divorce have longer lasting effects.
Steven Crowder’s complaint is of course not a sophisticated policy position. His beef is with a system that permits a particular autonomous individual (his wife) to choose whether or not to remain married—to him. But neither he nor anyone else has the right to insist that someone stay married. In the context of a civil marriage, there is no legal, much less fundamental right to force another individual to stay married. No court or legislature in this country has ever found a right to hold another person hostage in a marriage against their will, and such right is not articulated in any state or federal constitution. He thus argues for the repeal of no-fault divorce on the theory that she shouldn’t be able to leave unless he did something the legislature had decided was sufficient. In Texas, which retained its fault-based grounds for divorce, that would require proof of cruelty, adultery, conviction of a felony, abandonment, a 3-year separation, or confinement to a mental hospital. Under current law, his wife need only allege and prove “insupportability” of the marriage, which just means the marriage is broken.
What Crowder wants is control. But our modern divorce laws reflect the needs and realities of the broader society. The shift to no-fault divorce was driven by changing expectations about marriage but also by a cultural embrace of individualism. We, by and large, believe that people have the right to determine whether and when intimate relationships are desirable in their lives.
No-Fault Divorce as an Escape Hatch for Abused Spouses
Although in Crowder’s divorce announcement, he emphasized that there was no infidelity or physical abuse on either side, evidence that has surfaced since suggests that the reality is quite different than what he describes.
Two days after Crowder’s diatribe, a leaked Ring camera video showed him berating his 8-months pregnant wife. In the video, Crowder prevents his wife from leaving their home and threatens to “fuck [her] up,” abusive behaviors that his wife’s family later confirmed she “spent years hiding.”
Emotional abuse such as this—intimidation, isolation, coercion, and threats—is prevalent in many relationships and may rise to the level of cruelty required to obtain a fault-based divorce. One may think that proving to a court that a partner is cruel would make the path to separation easier, but the opposite is often the case. In the years one of us (Professor Nanasi) has spent representing survivors of domestic violence, none—zero—have sought divorce based on the cruelty ground. This is because fault-based divorce can be dangerous, traumatic, and prohibitively expensive for survivors.
Fault-Based Divorce Can Heighten the Risk of Violence
Because domestic abuse is, at its core, about one person’s attempt to exercise power and control over another, the most dangerous time for victims is when they upset this dynamic, “challenging” their abusers by seeking help or leaving the relationship. The National Institute of Justice reported that an attempt to leave was the precipitating factor in 45% of murders of women by their abusers. A victim is 3.6 times more likely to be killed in the time immediately following separation because abusers escalate abusive behaviors in an effort to reassert power and control.
A fault-based system exacerbates these dangers because it mandates blame-placing and finger-pointing. Survivors are required to prove that they were abused, and hostility thrives in “an arena [that incentivizes] couples portray[ing] one another in as negative a light as possible.” The public shaming and challenging of abusers inherent in fault-based divorce engenders heightened anger and volatility, which can lead to two disparate, but equally dangerous, outcomes—survivors will either avoid antagonizing their abusers and remain in abusive relationships or provoke retaliatory violence by seeking a divorce.
Additionally, fault-based divorce facilitates an abuser’s weaponization of the courts. Crowder has already doubled down, minimizing his conduct and making less-than-veiled threats to humiliate his wife in their divorce proceedings. No-fault divorce minimizes opportunities for abusers to force contact with victims who seek to avoid them, justify their behavior, and exhaust a survivor’s resources. In short, the faster and simpler the uncoupling, the safer the victim.
Proving Abuse in a Courtroom Revictimizes Survivors
The fault-based system re-victimizes survivors by forcing them to publicly recount the abuse they have suffered, often in excruciating detail. Reliving their experiences in the courtroom, often under the watchful and threatening eye of the perpetrator, is a significant source of re-traumatization.
This is especially true when parties represent themselves, which occurs in anywhere between 21 and 65% of family law cases nationwide. In those situations, survivors have to endure their abusers, who are permitted to question and cross-examine them, directly challenging their accounts of cruelty and violence in court.
Survivors Will Often be Unable to Afford a More Expensive Fault-Based Divorce
The more issues that are contested in a divorce proceeding, the higher the legal fees and litigation expenses. A divorce in which domestic violence is alleged will almost always be a contested divorce. This is especially true when a finding of domestic violence could adversely impact an abuser’s child custody claims, immigration status, or require him to surrender his guns. Thus, a fault-based divorce is more expensive than no-fault divorce.
Abused spouses often do not have access to or control over household finances because 94 to 99 percent of victims of domestic violence experience economic abuse. The significant financial expense required to prove fault is therefore a barrier for many survivors.
Thus, while no-fault divorce does not prompt people to leave happy marriages just because they can, fault-based divorce might well trap someone who wants or needs to leave. A survivor may ultimately perceive a fault-based divorce as so dangerous, traumatic, or costly that they will be deterred from separating and forced to remain in an abusive relationship.
Fault-Based Divorce Causes Unnecessary Delays and Headaches
Contested fault-based divorces involve more hearings in family court, which fills up the dockets of judges and consumes court resources, including court reporters, interpreters, and other staff.
Texas family courts are already overburdened. In Dallas County, for instance, trial dates for divorce litigants are currently being scheduled approximately six months from the pre-trial hearing. An increase in fault-based divorce would cause the family court system to become even more backlogged, which impacts not only victims of domestic violence but also any party interacting with the family court system, including parties pursuing divorce based on agreed insupportability, as well as those seeking child support orders, adoption of a child, name changes, or any of the many things that occur in family court.
The burden on the court system from contested divorces is of particular concern for family courts, where the majority of litigants are pro se. In Tarrant County, for instance, 68 percent of litigants in the district’s six family courts proceed without an attorney. Judges must walk unrepresented litigants through the process, correct forms and petitions, and provide alternative court dates for missed hearings. If all pro se litigants were required to pursue a contested fault-based divorce, involving complex legal arguments and sophisticated presentation of evidence, the family court system would become even more burdened and hearings increasingly delayed.
Delays in adjudication of legal claims are inconvenient for everyone but are especially harmful for victims of domestic violence, as delays force victims to remain in contested litigation (which as detailed above is one of the most dangerous times for victims) for a longer period of time. Moreover, low-income victims will be acutely affected by repealing no-fault divorce, as this population is more likely to experience abuse and more likely to be self-represented, but less likely to have the education and experience to successfully pursue pro se litigation. Do we want to return to a system in which only rich people can get divorced?
Conclusion
We will likely never know the full story of Crowder’s marriage and divorce, but nothing he alleges is a compelling argument to get rid of no-fault divorce generally—or to force his own wife to remain married to him against her will. Borrowing from Crowder’s own playbook, we suggest: Steven Crowder was a Bad Husband: Change My Mind.
