"It's not being looked at as a crazy thing": Emboldened Republicans renew push to restrict divorce

Yahoo

20-02-2025

As the Trump administration continues its opening barrage of contentious executive actions targeting federal protections for marginalized Americans, legislators at the state level are taking another shot at no-fault divorce, renewing a heretofore quiet effort to turn a fringe idea — restricting Americans' ability to get a divorce — into a potential reality in the most conservative states.
In Oklahoma last month, a state senator introduced for the second time a bill seeking to remove "incompatibility" from the state's grounds for divorce, while also proposing a separate piece of legislation that would provide a tax credit to encourage covenant marriages, which make it harder for spouses to obtain a divorce. In Indiana, a now-dead bill introduced last month aimed to add a hurdle for married couples with minor children seeking a divorce on no-fault grounds.
The recent bills targeting no-fault divorce come against a backdrop of a slew of executive actions at the federal level that threaten civil rights and freedoms for a host of Americans. While these state bills have previously failed to gain any traction in their respective legislatures — Republican Oklahoma state Sen. Dusty Deevers' 2024 attempt at eliminating no-fault divorce failed to make it out of committee — their reappearances in state legislatures illuminates a potentially burgeoning trend toward further limiting women's rights.
In a post-Dobbs United States, legal experts find such a prospect alarming.
Marcia Zug, a professor of marital law at the University of South Carolina School of Law, told Salon that she expects more of this kind of legislation to arise in the years to come because of their spread. Despite these bills' current unpopularity, their failures are not dissuading lawmakers in other states from introducing similar proposals.
"It's not being looked at as a crazy thing," Zug said of some ultraconservative state lawmakers' approach to the legislation. "'Some state over there is doing it. Let's consider it, and maybe we want to propose it, and maybe it'll pass — maybe it won't.' But if more and more, states propose it, some state will pass it. Maybe other states will pass it. That's more likely than not at this point."
No-fault divorce laws allow for married couples to split without having to prove either spouse's fault at a trial. Often coupled with unilateral divorce, which provides that only one spouse has to file to begin the process, no-fault divorce provides greater ease in ending a marriage while keeping the already overwhelmed family court system from getting bogged down.
In 1969, then-California Governor Ronald Reagan's implementation of no-fault divorce set off a tidal wave of other states adopting "incompatibility" as divorce grounds over the following 20 years. Though it came alongside the expansion of women's social and political power during the second wave of feminism, no-fault divorce initially arose to defend the integrity of the family court system from fraud and perjury as spouses fabricated evidence of fault to prove they were entitled to a divorce.
Its modern-day opponents, which include men's rights activists and these bills' sponsors, argue that eliminating no-fault justification would in turn promote traditional families and values, reducing the risk of harming children with contentious divorce proceedings.
SB 829, the Oklahoma no-fault bill, is part of an eight-piece slate of proposals that Sen. Deevers claims will "restore moral sanity in Oklahoma." It would end no-fault divorce in the state while still allowing for splits in cases of "abandonment," including "habitual drunkenness" and "gross neglect of duty," "extreme cruelty," "adultery" and "unknown pregnancy." For couples with minor children, the bill would also require the at-fault parent to establish a trust fund accessible when the child reaches adulthood as a form of restitution for the divorce.
Alongside his proposal to eliminate no-fault divorce, Deevers introduced another bill offering a $2,500 tax credit as an incentive for opting into a covenant marriage, a restrictive marriage contract favored by right-wing Christian groups that creates barriers to divorce like required counseling and limits applicable divorce justifications. Only a few states offer covenant marriages — Louisiana, Arkansas and Arizona — and they are widely unpopular.
Zug said the bill's "extreme cruelty" grounds is what most alarmed her because of its vagueness and implication that non-extreme cruelty would be insufficient grounds for divorce.
"One of the worries of getting rid of no-fault divorce is that it will increase domestic violence because lots of people who get divorced under no-fault theoretically would have grounds because they're abused," she said. "But there's so many problems with trying to get a divorce based on physical cruelty that people don't. So here, not only would they have to go through all of that, they would have to show that it is extreme — and what does that mean?"
Marilyn Chinitz, a veteran divorce attorney at Blank Rome in New York, flagged Deevers' no-fault bill as especially problematic when paired with the covenant marriage incentive.
"In my view, the state is totally overstepping its bounds" in proposing such legislation, she said. "Whether you have kids or not, you should have the same right to get divorced. There shouldn't be any burden or hurdles for you to end the marriage," she added.
Neither a spokesman for Deevers nor the senator himself responded to requests for comment.
Deevers, in a January press release announcing the bills, argued that the no-fault bill elevates the profile of marriage by making it meaningful and a binding contract while protecting people's right to leave abusive spouses.
'A society that teaches and allows a marriage covenant to be less important and binding than a business contract will reap the fruit of social upheaval, unfettered dishonesty, crime, violence towards women, war on men, and expendability of children," he said.
Indiana state Rep. Timothy Wesco also stressed the impact of divorce on children though he only attempted to complicate no-fault divorce for married couples with minor children. Under his now-defunct bill, at least one of the parties seeking a divorce on "irretrievable breakdown" grounds would have to present a witness who could testify to affirm the breakdown. The legislation also placed limits on who that witness could be, naming as acceptable individuals an officiant of the marriage, a parent or sibling of the party, and a religious leader with knowledge of the marriage among others.
Unlike the Oklahoma proposal, the Indiana bill was trying to implement a "speed bump," argued Zug. The assumption behind it, she said, is that "if you have to bring in a third party to agree with you that this marriage is one that can't be saved, you're less likely to divorce."
While she said she doesn't find that assumption "likely to be true," she added that the bill could be a step toward further attacking no-fault justification in the future.
However, Joanna Grossman, an SMU Dedman School of Law professor of family law, said that despite Wesco's possible intention, in practice, his bill would have been unlikely to have any tangible impact on the divorce process. If ever implemented, divorces would likely proceed exactly as they currently do with the addition of a third party who submits an affidavit to attest to the grounds.
"This rule only applies in the divorce that's on a no-fault ground, and so they're testifying to nothing," she told Salon. "They're testifying that the person who filed for divorce thinks the marriage is over. It's not an objective fact."
The Indiana House voted to withdraw Wesco's bill a week after it was filed in late January because its introduction violated the legislature's rules governing how many proposals a lawmaker can submit during one legislative session. While dead this session, the bill could theoretically return to the state legislature.
Salon asked a spokesperson for Wesco whether the lawmaker had plans to reintroduce the bill or similar legislation. That spokesperson told Salon he'd pass the questions on to the Indiana representative. Wesco did not respond by late Tuesday afternoon.
Wesco said in a late January post to X that he introduced the bill after watching parents "casually getting divorced and ruining their kids' lives while mutually claiming their marriage was irretrievably broken."
Chinitz argued, however, that these kinds of bills would have a similar effect on children and fail to protect children in the way they set out to. Increasing the time spent in a "vulnerable situation" with parents in an unhappy marriage "could be very dangerous for them and for their kids," she said.
"It's dangerous, and it has tremendous negative and adverse impact," Chinitz said of legislation targeting no-fault. "I think it's going to be very costly — costly, financially and costly because it's going to force people to stay in dangerous situations. Let's face it, victims will be less likely to report domestic violence, and it prolongs the divorce process — what a terrible impact that has on children."
Deevers' and Wesco's bills are far from the first proposals taking aim at no-fault divorce laws.
Deevers' first introduced legislation attempting to strike "incompatibility" from the state's divorce grounds in 2024, and a Republican state representative in South Dakota, Tony Randolph, introduced a similar bill every year between 2020 and 2024. The GOP in other states have also voiced an interest in legislation restricting or cutting no-fault divorce grounds, with Republican parties in Texas and Nebraska including guidance for potential legislation in their most recent platforms.
These bills, should they ever be successful, threaten to ensnare people in abusive and violent relationships while disproportionately limiting low-income Americans' access to divorce, argued Katie Dilks, the executive director of advocacy organization Oklahoma Access to Justice.
"When we look at this pitch to reduce divorce rates, it's really displaying a lack of understanding of what the actual causes and contributors are to Oklahoma's high divorce rates, which is unsafe families and unsustainable living conditions," Dilks said of Deevers' bill in a phone interview.
Oklahoma, which has one of the highest divorce rates in the nation, also has some of the country's highest rates of intimate partner violence and domestic violence homicides. Oklahomans also face procedural and legal barriers to obtaining divorces such as a lack of standardized court forms, Dilks noted.
"If we were to move to a system that required proving fault and having a full evidentiary trial, it would be a significant burden both on our courts but also on Oklahomans who need access to this to stay safe," Dilks said.
Dilks and Grossman said that in the current political climate, they don't expect these bills to gain any serious traction in state legislatures. While Dilks said the Trump administration may act as a sort of tailwind for rightwing lawmakers pursuing this legislation, she's unsure if it will "fundamentally change the paths and outcomes of those bills."
"I think it's just standard issue conservatism misogyny. There's nothing special about these bills," Grossman added. "They seem to be consistent with people who either want to take symbolic actions that shore up their conservative bona fides, or they actually want to trap women in marriages."
She also argued that the level of social disruption wrought by the current administration's actions makes it less likely these types of legislation will advance seriously because, by comparison, they may appear as "petty distractions."
"At the same time, maybe the big picture distraction will mean that people really can't pay attention to the small things that actually will cause a lot of harm and are just not going to get the attention they deserve from opponents," she said.