The Effect of No-Fault Divorce Law on the Divorce Rate across the 50 States and Its Relation to Income, Education, and Religiosity

By Nakonezny, Paul A.; Shull, Robert D. et al. | Journal of Marriage and Family, May 1995 | Go to article overview

The Effect of No-Fault Divorce Law on the Divorce Rate across the 50 States and Its Relation to Income, Education, and Religiosity


Nakonezny, Paul A., Shull, Robert D., Rodgers, Joseph Lee, Journal of Marriage and Family


Society uses many methods for social control, including the legal system. In the past, society erected a formidable barrier, fault-based divorce law, to prevent (or at least to hinder) the dissolution of a marriage. However, over time, social reforms have led to fewer restrictions regarding divorce in the United States. Perhaps the most profound social reform has been the switch from fault-based divorce law to no-fault divorce law.

Fault-based divorce law was a restrictive law designed to protect marriage. A divorce was granted under the traditional fault-based law only if one spouse was found at fault or "guilty" (e.g., of adultery or cruelty) and the other spouse was found "innocent" (Weitzman, 1985). Furthermore, the consent of the "innocent" spouse was needed to grant the divorce (Weitzman, 1985). Divorce was denied if both spouses were at fault. In theory, fault law awarded alimony, child support, and property distribution to the "innocent" spouse and the monetary value of the economic settlement was linked, in part, to the income level of the "guilty" spouse. Thus, financial gain resulted from proving fault of the other spouse. However, in practice, fault law treated the two genders differently in divorce in that the husband was generally responsible for alimony and child support and the wife was generally responsible for child custody (Weitzman, 1985). Perhaps the most fundamental drawback of the fault-based system was the requirement that at least one spouse be found guilty and the other spouse be found innocent of marital fault, because this framework of guilt and innocence perpetuated acrimony and conflict in the social-psychological and communication climate of the divorce.

In contrast, no-fault divorce law, now law in all 50 states, is a law designed to make divorce less restrictive. The essence of no-fault divorce law is that it does not attribute fault and thus does not require one of the spouses to be considered "innocent" and the other "guilty" (Weitzman, 1985). Rather, no-fault divorce law recognizes the breakdown of the marriage in that the spouses can no longer function as a married couple. Consent of both spouses is not required; rather, one spouse can decide unilaterally to divorce. No-fault divorce law is gender-neutral in that both spouses are responsible for alimony and child support and both spouses are eligible far child custody. Financial awards in terms of alimony, child support, and property distribution are no longer linked to fault but, rather, to the spouses' current financial needs and resources (Weitzman, 1985). The final but perhaps the most fundamental axiom of the no-fault divorce law is to improve the social-psychological and communication climate of divorce by abolishing the concept of fault (the framework of guilt and innocence) and by tempering the adversarial process surrounding divorce proceedings.

No-fault divorce law might logically lead us to expect an increase in the divorce rates because it has reduced the legal obstacles, the economic costs, and the psychological consequences of divorce. However, previous research (e.g., Allen, 1992; Marvell, 1989; Peters, 1986, 1992; Sepler, 1981; Wright & Stetson, 1978; Zelder, 1993) that has examined the effect of no-fault divorce law on the divorce rate has produced inconclusive results. This is probably due in part to the use of cross-sectional designs (e.g., Marvell, 1989; Peters, 1986, 1992; Wright & Stetson, 1978; Zelder, 1993). Hence, the first focus of the current research was to use longitudinal data to simply test the following hypothesis:

Hypothesis 1: No-fault divorce law results in an increase in the divorce rate.

The reduction of the legal obstacles and the economic costs of divorce that came with no-fault divorce legislation might have had differential effects on families with disparate income levels. That is, we might expect no-fault divorce to be more attractive to low-income families who could not afford divorce under fault-based legislation.

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