May 23, 2025

Divorce Needs More Consequence

Close-up hands breaking (freepik.com)

I'm a Family Law attorney primarily - this means I spend an unfortunate amount of time handling divorces. Living in a small town, I practice in other fields, but Family Law is one of the bigger demands. My role’s greatest reward is helping people move from difficult situations to more civil resolutions. However, my experience has highlighted concerns with how no-fault divorce is implemented, particularly its broader societal impacts.

Disclaimer: I am licensed to practice in Idaho and Montana, and my views stem from my experiences in these jurisdictions, though I believe they resonate nationally. I am happily married and have not been divorced. Each divorce case is unique, and going through a divorce does not make anyone a bad person.

No-Fault Divorce: A Historical Shift

No-fault divorce began in 1970 when California, under the Family Law Act of 1969, became the first state to allow couples to divorce without proving fault. [1] This landmark change influenced other states, with Idaho adopting no-fault divorce in 1971 under Idaho Code §32-603 for “irreconcilable differences” and Montana following in 1975 with its Uniform Marriage and Divorce Act for “irretrievable breakdown.” [2][3] Before no-fault divorce, couples had to prove fault, such as:

Adultery: Sexual relations outside the marriage;
Cruelty: Physical or mental abuse endangering the other spouse;
Desertion/Abandonment: Leaving without consent for 1-3 years;
Imprisonment/Felony Conviction: Incarceration for a specified period;
Impotence: Inability to consummate the marriage;
Insanity: Mental illness requiring institutionalization;
Habitual Drunkenness/Addiction: Chronic substance abuse.

Fault-based divorce often led to humiliating court battles or collusion, where couples fabricated grounds like staged adultery. No-fault divorce addressed these issues but introduced new challenges.

Till Death Do Us Part

In my view, the unfortunate part of no-fault is it makes the process of divorce too easy. This can be great for courts and process because it makes things move along, but my concerns stem from the ethics associated with it. While no-fault helps resolve the issue of collusion and perjury to achieve the same end goal, it also sells us the illusion that divorce is that magic answer they were looking for.

Want to start over in a new town or city, to run away from your problems? Divorce.
The honeymoon period is over and you realize you don't agree with everything your spouse does? Divorce.
Married too soon? Divorce.
No longer attracted to your spouse, or you just want an excuse to sleep with other people? Divorce.

Essentially, the option of no-fault tells people that they can simply solve their issues by quitting, withdrawing, or otherwise just walking away. It doesn't force people to attempt resolving the issues used for their demand to divorce or to work on themselves. It essentially turns marriage into extended dating with some legal documents. And it results in people scapegoating the other for their own issues they refuse to address or acknowledge.

Research suggests no-fault divorce led to a short-term spike in divorce rates, though its long-term impact is debated (Stevenson & Wolfers, 2007). [4] However, declining marriage rates—down to 6.2 per 1,000 people in 2022 (CDC, 2022)—may partly stem from the perception that marriage carries significant financial and emotional risks with easy exit options. [5]

Divorce Can Be "Beneficial"

Too often you hear the stories of one partner divorcing the other and walking away with a significant chunk of money. I feel lucky enough to practice in states that take a community property approach, which can help limit what and how assets get split during a divorce. I won't pretend to understand everything other jurisdictions offer.

Thanks to these stories floating around, there is certainly the perception that there's always the possibility to walk away with a handsome sum of money at your disposal. This is predominantly viewed as a female strategy. And in many cases, much of it has to do with the fact that males are more likely to take the nuisance approach: sure it's an unequal split, but it gets her out of my life and I can start over. I've witnessed this attempted in several of my cases, and I've seen the outcome described above happen in at least half of those cases. It just happens to be much harder to accomplish where I practice.

The Biggest Problem So Far

So far the issues are based in lack of personal accountability and greed. But I believe the bigger issue is a byproduct: the breakdown of trust in interpersonal relations. Outside the additional structure and intent with having a child, there is no real benefit other than taxes to getting married. If anything, the reality and rumor combination results in disincentives to younger generations.

Let's put this into perspective. Take an average 20 year old man: he's been in the workforce for a few years and is moving up. Maybe he's achieved a few years of college and is working toward something which requires a degree. He is making payments on his own car, and rents a small apartment. He has a small amount in savings, but otherwise mostly lives paycheck to paycheck due to the high costs of living impacting most of the United States. Let's call him Dan.

Dan has a girlfriend (we'll call her Sarah) who he's been dating for about a year. They get along well, but they both acknowledge they're pretty young and are taking things slow... legally at least. In his future, Dan has two choices to make if he wants to remain with Sarah: (1) continue dating and build up his assets and savings; or (2) get married and share said assets and savings - invest in the community.

Here's the problem (at least in a Community Property jurisdiction): if Dan gets married only to later get divorced a few years later, everything he invested in during the marriage is split in half. If Dan just dates, and things later fall apart, everything he's been saving up and accumulating is his. Now if both Dan and Sarah equally invested the same into the community, it probably wouldn't be a big deal. But unfortunately, that calculation is always messy.

Most courts view the contribution of everything prior to the split of assets. Once again excluding children from the equation, let's create an example balance between Dan and his girlfriend. Dan works 45/hrs. weekly at $22/hr; Sarah works 32/hrs. weekly at $18/hr. Maybe she spends her extra time keeping the house clean, does laundry, and cooks meals; maybe she doesn't; or maybe she spends a lot of money on a hobby that only benefits her. Sarah could be the most doting person in the world or the laziest wife ever: at the end of the day in a divorce, the court is going to probably split the money equally, regardless of what each person contributes in a non-fiscal manner.

Most men, especially young men, are going to opt for the dating approach over marriage because of this. Especially if they're already getting sex, which is usually one of the primary reasons men get involved in relationships in the first place. And with no protections for Dan if Sarah one day just wants to walk out of his life, he's fiscally safer to just not marry. These are the issues that are the result of a lack of trust.

Adding Kids Into The Mix

If things weren't messy enough with just two people dating or marrying, they get exponentially messier once one or more children exist as a result of the relationship. Suddenly you have extra money-sinks and stresses, which in the matter of divorce, can quickly turn into weapons to be used against the other parent. Custody is usually what plays the biggest part here.

Continuing on with the previous example, let's say Dan and Sarah have a 3 year old child: Amy. During the divorce, Dan wants equal custody of Amy, and Sarah wants primary custody, giving Dan every-other-weekend. They both live in the same town, but Dan works more hours: he'd be okay with rearranging his schedule or cutting time to spend more time with Amy, but Sarah argues that he's cutting back intentionally to not pay as much child support as she wants or feels entitled to.

I've seen something similar to this in about 90% of divorces where children are concerned. Often, this results in the father bargaining assets, debts, or anything else just to get more time with his child, while mother claims to need more money to provide for herself and the child. And it's a headache that can usually be solved by being creative as long as both parties aren't being unrealistic or greedy. But it's felt most by the child.

Regardless how much the child is used like a cudgel against the other parent to beat them into submission, children feel the effects long after the divorce is finished. Not only are they pushed into being the emotional weapon, but they are also forced to split time between parents in unnatural splits of time: every other week, weekends, every other day, a few times a month, etc. It's confusing, damaging, and causes FAR more problems than the divorce itself usually solves.

What Are My Solutions?

First off: I hope the above gives you just enough to understand. I could probably rant about these issues forever and do a mini series of posts, but most people aren't as passionate on this subject as I am. The blog also isn't supposed to be specifically law oriented, nor do I constantly want to discuss divorce. Regardless, I have an idea, or beginning of a solution, that I think can be explained to get the thought out there. I present it in two parts:

When No Children Are Involved

Absent a simple mutual agreement between parties, I believe there needs to be more consequence tied to a no-fault divorce. After all, it is the breaking of a bond that we at least used to associate a certain importance with. There should be some social pressure, perhaps some minor embarrassment, involved with formally separating from someone you earlier entered into a legal relationship with. Perhaps it's because I like contracts, but I think it should be similar to early-termination clauses in a rental or service contract.

You entered the relationship knowingly and voluntarily - you signed that agreement. Now you are asking to leave it with no fault, and therefore no excusable reason to leave. So you get a penalty: probably monetary. It doesn't have to be massive, but enough to maybe make people think twice to see if it's really worth giving up and initiating the no-fault proceedings. Maybe something like a 55/45 asset split in favor of the non-moving party. Just something to make people slow down and deliberate.

When Children Are Involved

The game changes significantly when kids are involved. They need stability and equal access (absent situations of abuse). They need both parents - at least while they're younger. In these instances, I would remove the option for no-fault divorce until the youngest child is in the ballpark of 13-16 years old. Why? Because there's now more than the two people who entered into the original relationship. There's consequences with actions, and the kids need to see their parent's figure out a solution instead of just giving up and going the "easy" route.

Fault Based Is Still An Option

Obviously as an alternative to the solutions I provided above, fault based divorce could continue. If there's a legitimate unreconcilable issue between the two parties, then they can prove it in court and have the court provide the solution. This is especially important in the event of abuse between parents and/or the children.