The "no-fault" revolution that swept the states in the 1970s increased the divorce rate about ten percent. Since the overall divorce rate is now a little under 50%, that is a sizable hunk of all divorces. A new study from the Institute for Marriage and Public Policy (iMAPP) by iMAPP president Maggie Gallagher and law professor Douglas Allen reviewed all the studies in this country and elsewhere to see what effect the no-fault revolution has had. They conclude that many factors contributed to the divorce boom, but the no-fault legal changes that made divorce easier were definitely significant.
No-fault was supposed to increase the divorce rate, at first. When states started passing divorce reform in the late sixties they figured that there was a backlog of unhappy marriages that would take advantage of the easier rules. Gallagher and Douglas estimate that most of the increase in the divorce rate due to no-fault came in the first ten years. Proponents of no-fault expected that there would be a divorce spike, followed by a return to the earlier divorce rate, or maybe even a lower one. Judges and lawyers were eager to end the charade that many divorces had become, in which both parties agreed to have one party pretend to be to blame, especially of adultery.
That is not quite the way it worked out, though. There was a divorce spike after divorce reform – but the spike did not come back down. By the early '80s we hit the highest divorce rate ever, and many respectable analysts thought half of all marriages would end in divorce. Things never got quite that bad, and there has been some improvement recently, especially for educated people. Still, as Gallagher and Douglas show, divorce reform makes people reluctant to get married, or lets them expect to take an easy exit when things get tough, as they always do.
New York is the only state that still requires that someone be at fault in order to grant a divorce. Yet about 2/3rds of New York divorces are uncontested, and in many of those cases the parties agree ahead of time that one of them will admit to fault in order to get on with the divorce. This is why a high-level panel of judges and lawyers is proposing to do away with New York's fault standard altogether.
So, if we went back to fault-based divorce, would that be better for marriage? Not really. The problem is not really that we now have no-fault divorce, but that we have unilateral divorce. What the no-fault revolution has really meant is that it takes two to marry, but only one to divorce. In practice this often means that the "monied party" – usually him – can walk away from the "unmonied" (or making-much-less) party and the kids.
New York probably will join the rest of the country in abolishing fault as the only standard for divorce. They could strengthen marriage, or at least make divorce less awful, if the state eliminated unilateral divorce at the same time.