The current requirement in Nebraska to obtain a divorce is a finding that the “marriage is irretrievably broken.” This is the only allegation that must be present in a Complaint for Dissolution and a finding that the court must make to grant a divorce. Nebraska shifted to a no-fault divorce state in 1972 because advocates believed that divorce is a private matter that should not be restricted by the state. After decades of no-fault divorce law, some conservatives want to make it harder to end marriages based on irreconcilable differences.  

Republican lawmakers in states like Louisiana, Oklahoma, Nebraska, and Texas have discussed changing or ending no-fault divorce laws. In fact, on the Nebraska GOP website, it states that “We believe no-fault divorce should be limited to situations in which the couple has no children of the marriage.” 

What is no-fault divorce vs a fault divorce? 

No-fault divorce is just how it sounds- no one is attributed fault for the divorce. Nebraska courts have been clear that who “caused the divorce,” is not relevant to the divorce proceedings. In reality, when a couple obtains a divorce, both parties have some culpability to marriage not working.  

A fault divorce requires one party to allege and prove that the divorce is the result of a specific reason, such as the other party’s infidelity, abandonment, long-term incarceration, or physical abuse. Some states have included “cruelty” as a basis for a divorce which requires a finding that one spouse has caused their spouse unneeded pain, usually physical but sometimes emotional pain is included. For a legal standpoint, no-fault divorces are significantly less complex.  

Advocates to eliminate no-fault divorces 

Advocates to eliminate no-fault divorce argue that having no-fault divorces make it too easy for women to obtain a divorce and undermines the sanctity of marriage. Divorce is what we do at McGill Law. It is neither easy nor fun. People get divorced for a multitude of reasons, but choosing to improve their lives is the biggest. People don’t take the decision to get divorced lightly. It is a huge decision that demands lots of contemplation, unhappiness, and sometimes abuse. Often, people don’t make the leap to go forward with a divorce until they’ve considered it and endured challenging times for years, frequently decades. 

Advocates to eliminate no-fault divorces also argue that it violates the 14th Amendment because divorce “deprives defendants of life, liberty, and property without due process of law. They argue that divorce is harmful to children and potentially leads to anxiety, depression, anger, and confusion.  

There are usually religious arguments against allowing people to freely divorce. Some conservative Christians allege that divorce is unbiblical and against God’s will. They also argue that no-fault divorce infringes on their right to freely exercise their religion.  

These arguments are meritless and disproven by facts. Census data from 2002 revealed the US divorce rate hit a 50-year low in 2019.  

The argument that allowing spouses to obtain a divorce violates someone’s liberty is fundamentally flawed. One’s right to liberty is actually a reason to allow no-fault divorces. It’s easy to see how forcing people to remain in marriages violates their liberty. 

Many studies have been conducted about the effects of divorce on children. A 2019 study published in World Psychology found that while children of divorced couples may struggle with some negative repercussions, “most children whose parents divorce are resilient and exhibit no obvious psychological problems.”  Research has shown that the most significant factor impacting children of divorcing parent’s well-being is the level of conflict and negativity between parents during and after a divorce.  

The World Psychology study adds that there are innumerable other factors that could affect a child of divorce’s wellbeing that have nothing to do with the divorce itself. “Marital instability presents not a single risk factor, but a cascade of sequelae for children,” the study reads. 

Impact of eliminating no-fault divorces 

The impact of bringing back fault divorces would have far-reaching consequences, especially for women. Having to prove that someone is at fault for a divorce will drastically increase divorce costs, divorce outcomes, the divorce process’s emotional toll, and women’s autonomy. Having to prove fault heightens divorce’s damaging effects of including shame, blame, and animosity.  

Prior to 1972 when Nebraska still had fault divorces, it wasn’t uncommon for couples to concoct scenarios together that would feign adultery, or for one party to move across state lines to fulfill legal requirements for fault claims like abandonment. Couples would also move to a state that allowed a non-fault divorce solely for the purpose of obtaining a divorce. The system was broken.  

A woman in the US who was in an abusive or exploitative marriage didn’t have many options prior to the adoption of no-fault divorces. Husbands typically controlled the family’s finances and often still do. For women who do not have access to their finances, they are unable to hire an attorney, are not possessed with the knowledge about their marital estate or the divorce’s financial fallout. Because of these things, they are extremely fearful that they will not be able to financially succeed on their own. The financial piece along with the requirement to prove fault and the stigma with divorce were all factors to keep women in bad, often abusive, marriages. Of course, if a husband didn’t want a divorce, the challenge for a woman to obtain one was often insurmountable.  

The removal of no-fault divorce would likely have especially harmful effects on women who are disproportionately affected by domestic violence and/or economic hardship.  

No-fault divorces were adopted as it substituted truth for deception, common sense for technicalities, and gave the courts real opportunity to prevent marriage failures by means of conciliation and treatment, rather than to punish marriage failures.  

Benefits of no-fault divorces:  

Taken at the simplest form, no-fault divorces provide an easier path to end a marriage. Couples can avoid the monetary and emotional expenses of protracted litigation by utilizing an uncontested, collaborative, or mediation process.  

At McGill Law, we are proud to offer divorcing couples options that are less adversarial and focused on helping families through the divorce transition. Divorce is a huge life event, but it doesn’t have to be a massive fight. Of course, there are and always will be cases that require litigation, but the idea that it must be that way is absurd. Litigation is an antagonistic process that frequently results in more harm to children, more harm to the participants, and requires adults to relinquish control over their futures to a Judge who doesn’t know them or their family and doesn’t have to live with the consequences of her/his decisions.  

No fault divorces are undoubtedly faster and less expensive. The costs of divorce would spike astronomically if we were required by a court to find fault. This shift would require families to share private, embarrassing, and often difficult to prove facts. Forcing couples to testify about these things would increase conflict during and after the divorce. 

Damaging effects on women 

In many cases, fault-based divorce laws historically reinforced patriarchal power dynamics in marriage. Women, particularly in traditional marriages, were usually financially, emotionally, and socially dependent on their spouses. This dependance made it more difficult for them to assert their right to leave an unhappy or abusive relationship. 

Without the ability to divorce without proving fault, many women could find themselves unable to leave marriages where they are dominated by controlling or abusive spouses. The cost and burden of proving fault would allow abusive partners to exert even more control, particularly in situations where financial dependence or child custody issues are involved. 

In domestic abuse situations, fault divorces would (and did) require the abused to testify against the abuser. This increases the likelihood of retaliation and further harm. Evidence of abuse is not customarily available as victims are often extremely fearful of calling the police or attempting to document the abuse. Imagine an abused wife testifying about the years of abuse she has suffered without evidence. Initially, she’d have to find the resources to hire an attorney to represent her or go to court with no representation against a seasoned attorney. If the court doesn’t believe the woman’s testimony and finds her not credible, the court could deny the divorce. This woman would then be forced to stay in a toxic, abusive marriage and ultimately her freedom would be extinguished.  

In fact, anyone who knows anything about abuse and the abuse cycle understands that the abusers typically make better witnesses than the abused. Abusers are often able to present as charismatic, believable, and put together. To the contrary, many victims of abuse appear histrionic and scattered. This is because abuse victims are often still in a “fight or flight” status and are in a trauma response. 

Women are more likely than men to experience economic hardship following a divorce, particularly if they were stay-at-home mothers or had limited career opportunities due to child-rearing responsibilities. The requirement to prove fault in court will make it more difficult for women to achieve an equitable settlement. In a contested fault-based divorce, the financial resources of the wealthier spouse—often the husband—could make it easier for him to fight the divorce or secure a more favorable financial outcome. This would exacerbate the gender wealth gap and leave many women in financial limbo.  

Since 1969, studies have shown no-fault divorce correlates with a reduction in female suicides and a reduction in intimate partner violence. A 2004 paper by economists Betsey Stevenson and Justin Wolvers found an 8-16% decrease in female suicides after states enacted no-fault divorce laws. They also noted a roughly 30% decrease in intimate partner violence among both women and men, and a 10% drop in women murdered by their partners. 

Fault divorces are bad for families  

Feminist and human rights advocates see no fault divorce as an important buttress for gender equality. Many legal scholars also see no-fault divorce as a common-sense legal path that reduces unnecessary burdens on courts and couples. Many consider no-fault divorce laws foundational to creating marriage, an institution that has long provided the most material benefit to men, more equitable for women.  

The elimination of no-fault divorce would undoubtedly increase the divorce process complexity and difficulty for all, but particularly for women. By requiring proof of fault, the law would introduce additional barriers to those seeking to leave harmful, unfulfilling, or unsafe marriages, with the greatest burden falling on vulnerable women. 

No-fault divorce laws have provided individuals with a mechanism to end their marriages without the need to navigate a legal minefield or engage in lengthy, acrimonious disputes. The repeal of no-fault divorce would, at best, make the process more burdensome and, at worst, force many women to remain in abusive, financial exploitative, or emotionally harmful marriages 

To preserve fairness, equality, and safety, it is essential to maintain the option of no-fault divorce, ensuring that all individuals—especially women—can make choices that are in their best interests, free from undue hardship or coercion. 

If you’re considering a divorce or know someone who is, now may be the best time to move forward. Call us. We can help.