Raquell Barton was knee-deep in her doctorate program at the University of Memphis when her husband dropped a bomb on her: he wanted a divorce.
It caught her off guard. Somewhere between the research and projects for her instructional design program, he began to feel neglected, like he and their marriage were no longer a priority for her. She said he never mentioned how he was feeling until he asked to part ways, and by then, he'd mentally checked out of the marriage.
"When I went into that doctoral program, we were on the same page. We knew it was going to be hard. We knew it was going to be a struggle. We knew my focus was going to be on something else," she told Salon in a phone interview. "By the time I realized something was wrong, it was too late."
He wanted out. She didn't. Despite her protests, the pair legally separated in 2018. After six months of separation, Barton's husband still hadn't filed for divorce even though he'd started seeing someone new. Fed up, she felt she had to take the initiative. The divorce was finalized in 2019.
Her divorce was as no-fault as divorces come, she said, even if it wasn't what she wanted.
"I went into [marriage] hoping that I was gonna have that Happily Ever After fairy tale, but sometimes it just doesn't happen," said Barton, now a certified divorce coach helping other women who didn't want their marriages to end in Arkansas, Texas, Tennesee and Oklahoma. "It's not that I don't believe in the sanctity of marriage, but sometimes it just doesn't work out. You just have to let people go."
Barton's circumstances aren't at all uncommon. But opponents of no-fault divorce laws, which allow couples to split without either spouse having to claim fault or both having to agree, believe it's enough cause to eliminate or curtail no-fault grounds in divorce law altogether.
Though still only emerging from the fringes, the burgeoning movement against no-fault divorce has gained something of a foothold in a handful of ultraconservative states, including Texas and Oklahoma. The effort also has supporters up to the highest levels of government, from state Republican party platforms and state proposals to House Speaker Mike Johnson, R-La., and Vice Presidential candidate JD Vance.
While legal scholars and divorce lawyers are unsure if legislation striking no-fault grounds for divorce will ever take hold due to its widespread unpopularity, the effort to make that a reality in places like Oklahoma and South Dakota presents a looming threat to advocates who, in a post-Dobbs America, fear the worst. That threat seems much more real with an active divorce antagonist currently seeking the vice presidency, they say, and should it ever become a reality, it stands to disproportionately harm women.
"I am scared every day as we get closer and closer to the election and the next legislative session," Samantha Chapman, the advocacy manager of the ACLU of South Dakota told Salon in a phone interview. Though the legislature doesn't currently have enough members who support eliminating no-fault divorce laws to pass, she fears the number will continue to grow.
"I am terrified that we will someday reach a point where they do have enough numbers to pass a law that would make it harder for people to escape dangerous situations, like pregnancy sometimes, and like marriages sometimes," she said.
A movement emerging from the fringes
The scrutiny of Ohio Sen. Vance's past comments amid his summertime ascent to former President Donald Trump's running mate has brought new attention to the effort to end or restrict no-fault grounds.
Vance has been outspoken in his disdain for divorce and has blamed it for what he characterizes as the breakdown in the American family. During an event at a California Christian high school three years ago, he claimed that Americans can obtain divorces too easily, shifting "spouses like they change their underwear," and suggested they should remain in unhappy marriages for children's sake.
“This is one of the great tricks that I think the sexual revolution pulled on the American populace, which is the idea that like, ‘well, OK, these marriages were fundamentally, you know, they were maybe even violent, but certainly they were unhappy. And so getting rid of them and making it easier for people to shift spouses like they change their underwear, that’s going to make people happier in the long term,’” Vance said in a video published by Vice, arguing that the children of those failed marriages bear the brunt of the split.
Those remarks weren't the only time he'd publicly lamented divorce either. At a Toledo candidate forum in March 2022, he likened divorce to discarding one's spouse "like a piece of clothing" and described it as one of the "most dangerous assaults that we’ve ever seen on the family in this country."
The Trump-Vance campaign did not respond to an emailed request for comment.
A campaign spokesperson for Vance told Vice in 2022 that he did not support any changes in divorce law. Still, the Republican vice presidential candidate's views proliferate among members of men's rights groups, conservative Christian leaders, and rightwing influencers, who have given breath to the movement to upend no-fault divorce in favor of fault-based grounds, which would require either party to prove a spouse's wrongdoing in court — and not lose on a potential counterclaim from their spouse — in order to obtain a divorce.
Proponents claim that, because women initiate divorces more often, current divorce laws disproportionately harm men and disrupt the American family. They see restricting the practice to fault-based grounds as a step in restoring the nation to traditional values around family and marriage.
Far-right podcaster Steven Crowder, who garnered national attention last year after a video showing him verbally abusing his pregnant then-wife went viral, criticized Texas' no-fault laws for empowering a spouse to leave even if the other doesn't agree. Conservative political commentator Matt Walsh has dubbed the divorce system "unjust" and advocated for an end to no-fault grounds, while YouTuber Tim Pool titled a 2022 clip of a podcast segment discussing the topic, "No-Fault Divorce Has DESTROYED Men's Confidence In Marriage, Men Don't Want To Get Married Anymore."
Joanna Grossman, a professor of family law at SMU Dedman School of Law in Texas, argued that these claims show that men want women to be "trapped" in marriages.
"They want the women to be stuck with them because marriage is pretty good for men," she told Salon in a phone interview, citing benefits of marriage for men, such as living longer and getting paid more. "So when men say they want fewer people to get divorced, what they mean is they want fewer wives to leave fewer husbands," she added.
It comes as no surprise, then, that the people advocating for an end to no-fault divorce also support strict abortion bans, are "obsessed with trans kids" and want to ensure the "separation of sexes is very clear," she said. Those efforts "all serve men."
Though initially a talking point on the outskirts of the right's politics, the lambasting of no-fault divorce has begun to leak into the legislatures and party platforms of ruby-red states as they've moved farther right.
The Texas GOP in its 2024 platform urged the legislature to rewrite its no-fault divorce law to promote the maintenance of a "traditional family" through required intervention or counseling and included a recommendation that it strike unilateral no-fault divorce. The Nebraska Republican Party's 2022 platform, the latest available on its site, aspires to restrict no-fault grounds to couples without children, while Louisiana GOP members floated whether to include a no-fault restriction in their platform early last year.
In South Dakota, a bill seeking to remove irreconcilable differences from the state's list of divorce grounds has been introduced every year since 2020, according to the state's ACLU chapter. Republican state Rep. Tony Randolph, the primary sponsor of those bills, introduced the latest iteration, House Bill 1254, in January. It was killed in the state's House of Representatives in February.
Republican Oklahoma state Rep. Dusty Deevers introduced a similar proposal attempting to remove "incompatibility" from the accepted reasons for divorce to the state's Legislature earlier this year. Senate Bill 1958 met a similar fate, according to the Oklahoma Voice, and is presumed dead after failing get a hearing by the Judiciary Committee.
Marcia Zug, a family law professor at the University of South Carolina, said that these legislative moves are concerning, pointing to the impact of the 2022 Dobbs decision overturning substantive due process granted by Roe v. Wade.
"A few years ago, pre-Dobbs, this wasn't even on the table, and after Dobbs, it's on the table. It's on the edge, but it's on the table," she told Salon in a phone interview, warning against dismissing these bills just because they haven't succeeded, like people did when Roe was first under threat. "A lot of these things that they are going after are things that are popular," Zug said, pointing to IVF, abortion access and no-fault divorce. "But that doesn't seem to be a roadblock to proposing the elimination of it," she said.
Grossman added that the notion that the state would decide whether one's marriage was bad enough to dissolve doesn't square with "our feelings about and control over the arc of our lives. It would be really hard for people to even understand what that would be like now."
"Divorcing with their feet"
No-fault divorce currently allows spouses to file over "irreconcilable differences," "incompatibility" or because their marriages are "irretrievably broken," among other synonyms, with specific language depending on the state. Fault-based divorce, on the other hand, requires the partner seeking the divorce to provide evidence of their spouse's wrongdoing on specific grounds that also vary state-to-state, including cruelty, adultery, intemperance and abandonment.
Asha Heyward-James, an associate attorney of family law at Kessler & Solomiany in Georgia, told Salon in a phone interview that the grounds for divorce mostly function as a "technicality," and means of categorizing the process. How the court grants the divorce rarely affects the eventual split of assets and custody arrangements, she explained. "It's really the gatekeeping question: whether you're entitled to a divorce," she said.
Marilyn Chinitz, a partner in matrimonial and family law at Blank Rome in New York, said that filing for divorce on fault-based grounds is unnecessary, costly and drives an extra wedge between parties. The only time citing fault in a divorce makes sense is if its "such egregious fault" as domestic violence because then it will affect the distribution of assets, she said in a phone interview.
In other cases, "judges do not want to hear about dirty laundry — who did what — because at the end of the day, it doesn't matter. What matters is that you end the marriage," Chinitz said. "If it's not a healthy, good marriage, you end the marriage so that kids don't have to suffer a prolonged process, and you deal with the important aspects of the marriage" like asset splitting, child support, custody and spousal support.
Ronald Reagan while serving as governor of California signed the nation's first law allowing for no-fault divorce in 1969, and a majority of states followed suit within the next 20 years. New York became the last state to legalize the practice in 2010.
No-fault divorce legislation came amid other, broader social and cultural changes — like the right for married and then unmarried women to access contraceptives and the passage of Title IX protections against gender-based discrimination — that expanded American women's power even as they faced continued exclusion from certain professions and the gender pay gap.
Implementing a no-fault divorce policy was necessary to preserve the integrity of the court system in a legal environment then-marred with fabrication, Grossman explained. When states required a plaintiff to prove their spouse's fault, divorce was understood to be a remedy for an innocent partner who had suffered a specific form of marital misconduct that was bad enough to justify dissolving a marriage. An admission of guilt from the defendant didn't count as evidence, and if the defendant had a valid counterclaim, the divorce would be denied.
To get around it, couples that wanted to split lied, perjured themselves and manufactured evidence to prove they were entitled to a divorce.
"It was just an illegitimate system, and it had to do with feeling like the fault approach just wasn't capturing what we should really care about, which is whether a marriage had failed or not," Grossman said. "It was just an artificial way of understanding that, and it wasn't getting it right."
When Americans previously sought divorces, those who could afford it traveled to what became known as "divorce mill" states like South Dakota, Indiana and Nevada to take advantage of their shorter residency requirements. In late 19th century, Sioux Falls, S.D., for example, the now-defunct Cataract House Hotel was a hotspot for divorce tourism, housing affluent estranged spouses while they waited out the state's then-90-day residency requirement to file for a divorce. Reno, Nevada's divorce tourism took off later between 1927 and 1931, when legislators lowered the residency requirement for divorce from six months to three months, and then down to six weeks.
The circumstances before then were even more grim, Zug said. During the 19th century, most people couldn't get divorced in the United States, and instead just abandoned each other or divorced "with their feet."
The pre-no-fault era showed that Americans would find a way to divorce if that's what they wanted because that's what they've always done, Zug said. "They will change states. They will manufacture grounds," she explained. "They will create new personas. They will leave."
How a fault-only regime could look today
Should Republicans in Nebraska, South Dakota or Oklahoma ever succeed in re-instating a "fault-only regime," Zug said she doesn't expect affected Americans' reactions to look much different than their predecessors. She and Grossman predicted that the impact will also manifest as it has with the rollback in abortion rights but "on steroids."
The primary consequence of those laws would be that divorces would become more expensive, while the process of obtaining one would likely take longer, leaving working-class and lower-income people who can't afford the expenses to disproportionately shoulder the burden. Divorce tourism will rise as people scramble to dissolve marriages they no longer wish to be in, and Americans who can't travel, don't have the mobility or are at risk of surveillance would also face additional barriers, they said. Younger Americans, whose marriage rates are already on the decline, may opt to forgo marriage altogether out of concerns that they someday be stuck in them.
Chinitz added that the reinstitution of fault-only grounds would "bog down" the already overwhelmed family court system as estranged couples air out their deeply personal grievances and spar over proving one party's wrongdoing. It also opens the door for blackmail, with one spouse threatening to withhold divorce unless the other accepts less than the law would provide them, she said.
Acquiring tangible proof of wrongdoing would also be much harder to come by under an at-fault divorce, a dynamic made worse when a woman is seeking a divorce to escape abuse, Zug said. Plus, a potential abuser would fight grounds of domestic violence in court much harder to avoid the stigma, which could keep victims of domestic abuse in unsafe, unhealthy relationships.
"If we're talking about family values and what's good for society, it's very hard for me to imagine that keeping miserable people, abusive people, together is the sort of marriage that we see as good for America," Zug said.
That outcome — the potential to worsen conditions for people facing abuse in their marriages — is what advocates fear most.
Amy Polacko, a divorce coach and co-author of "Framed: Women in the Family Court Underworld," said the majority of her clients are seeking a divorce to escape financial, psychological or emotional abuse, and, at times, physical abuse, too. She told Salon she experienced financial and psychological abuse in her previous divorce experiences, felt disempowered while navigating the family court system and fears more women may have to go through what she had should those laws someday come to pass.
"Getting rid of no-fault divorce will entrap women in domestic abuse situations, essentially making them prisoners," Polacko said in a phone interview.
"Abusers have a playbook, and they follow it," she added. "It's all about power and control. It's all about coercive control, and getting rid of no-fault divorce is another step in exercising coercive control over your spouse."
A 2003 National Bureau of Economic Research study found a correlation between no-fault divorce and a decrease in female suicides alongside intimate partner violence. Since 1969, researchers Betsey Stevenson and Justin Wolfers noted an 8% to 16% drop in female suicides after states implemented no-fault divorce laws. They also saw an average 30% decrease in intimate partner violence for both men and women, and a 10% dip in women murdered by their partners.
"If you know now that no-fault has such an effect on keeping women alive and safe, it's even more absurd to be arguing to go back because now you realize what you're really doing is sentencing women to more violence and more deaths, either at their own hands or at the hands of their partner," Grossman said. "We just know the access to divorce makes people safer. It makes women safer."
Barton, the Arkansas divorce coach, echoed Polacko's fears for the future as she recalled the story of a childhood friend of hers who was killed by her estranged ex-husband in front of their children around a decade ago. She said she worries that the elimination of no-fault would only beget more violence — and that its restriction could have a "domino effect," especially in deep-red states.
"If it passes in one place, I fear it'll pass someplace else," she said.
"A self determination question"
Heyward-James, the Georgia lawyer, said she doesn't see efforts to end or restrict no-fault divorce ever succeeding, even in deeply conservative states where legislation has already been proposed. If anything, she said, she sees ultraconservative officials in those states succeeding in passing laws that make divorces harder to obtain, like extending residency requirements, mandating mediation or parenting seminars, and creating steeper obligations during the pre-trial discovery process.
Amid the election campaign, she said she's more aware than ever of how crucial Americans' votes will be in determining whether more legislators and judges who may back the effort against no-fault win their races.
"You have to start looking into those smaller local offices, especially as it relates to your judicial system because the people you're putting into office today are going to be the people who are making those laws and legislation in 15, 20, years from now," she said, adding: "It only takes that one step in the door."
For the remaining scholars, coaches and advocates, the movement to end no-fault divorce gaining any more ground sets off alarm bells. Each said they had never expected to see Roe v. Wade, the landmark decision establishing substantive due process and a federally protected right to abortion access, be overturned. But it was, and the fallout since — an increase in infant deaths and pregnant women dying from fetal complications experts say abortion care could have prevented — has been immense.
Chapman, the ACLU South Dakota advocacy manager, said the fight against no-fault divorce boils down to a "self-determination question."
"In my opinion, I think that people who are opposed to no-fault divorce do not want women to have the ability to self-determine their futures, whether that be to choose to remain in a marriage or to leave a marriage, to choose to remain pregnant or to no longer be pregnant," she said. "They don't believe in that kind of self-determination as a right."
Though she and the others are all ultimately unsure if no-fault divorce laws will ever meet the same fate as abortion access has in a slew of states, they believe that the Dobbs decision has made it a real possibility.
"I want to imagine a world in which that never happens," Chapman said, adding: "We can't just rest and believe that our opponents aren't going to actually follow through with their threats. It's my hope and my belief that moving forward, as a movement for people who care about bodily autonomy and self-determination and women's rights and freedoms, we're not going to accept this slow chipping away process that we saw with abortion rights with regard to no-fault divorce."
