Family Law Attorneys Weigh in on States Repealing No-Fault Divorce

Some lawmakers are challenging no-fault divorce, hoping to reintroduce the fault-based system of yesteryear. (Oklahoma state Sen. Dusty Deevers introduced a bill in January; the Texas Republican Party had it on its 2022 platform, as well as its current one; and federal politicians such as Ohio Sen. JD Vance, House Speaker Mike Johnson, and former HUD Secretary Ben Carson have spoken in favor of stricter divorce laws.) In response, we asked some top divorce lawyers whether they think the bans will happen, and what such changes would mean for the practice of law.

Super Lawyers: If no-fault divorce were rolled back, what would it mean for your practice?

Denise Mirman, a founding partner of the Columbus, Ohio-based Friedman and Mirman. Mirman has been practicing for over 30 years: There would be more trials, because if you desperately want a divorce, you’d have to try to prove that your spouse is at fault. And there will be different interpretations in different states about what [fault] means. In Ohio, there are some cases of extreme cruelty. But there were some arguments over, well, what if you have a spouse who’s really awful to the child but not awful to the spouse? Is that extreme cruelty? There would be so many fewer cooperative, civil ending of marriages, if it has to be fault-based.

Melinda Eitzen, a founding partner of the Dallas-based firm Duffee + Eitzen. She is at the forefront of collaborative law in Texas: I work with lot of people who do collaborative divorce, and we’d have to do a workaround. People would have to say, “we both agree we have grounds [for divorce].” Even so, it would be more expensive, and it would clog up the courts because we would now have something else to fight about.

Michelle May O’Neil, a family law specialist with the Frisco, Texas-based OWLawyers. She handles clients in litigation as well as appellate matters: Now we have artificial intelligence, and we have deep fakes. We’re already seeing this as lawyers in trial on the front lines. We’re already seeing people start falsifying evidence. At the end of the day, people are going to get divorced if they want to badly enough. So with fault-based divorce, if they want to badly enough, they’re going to create evidence. And then what do we do? How do we test the veracity of that evidence? And how do we believe the testimony of this person versus that person?

SL: How would people who are seeking to end their marriages be affected?

O’Neil: Right now, most people can get a divorce just because they want one. You don’t need the permission of your spouse. Most women’s rights advocates point to the fact that, for domestic violence victims, no-fault divorce enables them to get out of marriages that are abusive without having to prove the abuse, without having to confront their abusers. We know statistically if a victim has to confront their abuser, they are much less likely to [file for divorce]. They are not going to want the retaliation, or they may just not even have the mental or physical fortitude for that confrontation, or they may not have the money for a divorce.

Eitzan: The cycle of domestic violence is already very difficult to break. It’s horrible. So would we really want to add another hoop they have to jump through? I mean, now if you can get them to break the cycle, they can get out, but if they were told, “you’re going to have to go prove it,” and then in the process of trying to prove it, they have to wait to get beat up again, and then he catches her taping it, and then he kills her. I just think it’s horrible.

It’s the same with adultery. You can prove adultery a little easier if you hire a PI, although in some places, we now have stricter rules about surveilling people. But let’s say you hire a PI to follow them around, and they do something in public with the girlfriend or boyfriend. But they’re not going to have intercourse in public, and it’s not technically adultery to hold someone’s hand or kiss them. So again, how do you catch them? It’s so ridiculous.

O’Neil: It will end up costing a lot of money, and poor people are not going to be able to do that. So are poor people then going to be stuck in marriages? Are poor people going to be stuck at the hands of their abusers? Are poor people going to be put in jail based on false evidence? How many things in society would this affect and basically widen the divide between those who have and those who have not?

SL: What do you think is the likelihood that this will actually happen?

Mirman: It depends on the outcome of the election. This is one of many things that [the people who want it] are just waiting to see how the chips fall, nationally. But it’s not just going to go away. I don’t think it’s going to die quietly.

O’Neil: I don’t think the idea of taking away no-fault divorce solves the problem that the conservative movement is trying to fix. There’s got to be a different solution rather than just rolling us all the way back to the to the days of the ’50s and the ’60s, where women were forced to stay in marriages that weren’t quite as happy as everybody likes to believe they were.

Mirman: Who knows what will happen after the election? Ohio is pretty red right now once you get outside of the cities, so I wouldn’t be surprised if it happens. I just can’t imagine that anyone who is a divorce lawyer would think this is a good idea. We don’t need to be my mired in something like this.