A More Perfect Dissolution: The Federal Case to Protect No-Fault Divorce

Tessa Cook

Edited by Keerthi Chalamalasetty, Ishi Chakravarthy, Judge Baskin, and Sahith Mocharla

Well, she finally got the nerve to file for divorce; she let the law take it from there.”

-The Chicks, “Goodbye Earl”

For the first two centuries of United States independence, divorces were only granted on the basis of “fault” [1]. A spouse seeking divorce had to prove in court that their relationship fell into a category that was eligible for divorce such as cruelty, abandonment, severe substance use, prolonged period of separation, or felony conviction. Since 1969, however, “no-fault” divorce, or the legal right to end a marriage without proving marital misconduct, has become a cornerstone of U.S. family law [2]. Widely supported by the public, the rise of no-fault divorce in all 50 states has coincided with reductions in domestic violence and female suicide [3]. However, as the legal landscape transitions toward a stricter interpretation of personal liberty, the stability of no-fault divorce is no longer certain [4]. The right to terminate a failed marriage without undue burden is not merely a matter of state legislative grace, but a fundamental liberty protected under the 14th Amendment of the U.S. Constitution. 

The fight for no-fault divorce proceedings in the United States can be traced back to the Seneca Falls Women’s Rights Convention in 1848 [5] [6]. Although women’s suffrage is the convention’s primary legacy, Elizabeth Cady Stanton, an activist in attendance, was “notoriously in favor of making divorce easier.” The Declaration of Sentiments produced by the women at the convention formally criticised fault-based divorce proceedings, including that the current laws of the “proper cause of divorce” are “wholly regardless of the happiness of women” [7]. 

While the primary struggle for women’s suffrage was primarily over after the ratification of the Nineteenth Amendment in 1920, fault-based divorce code persisted in every state [8]. A century after Seneca Falls, Coe v. Coe (1948) highlighted the cracks in the fault-based system [9]. After a wife attempted to relitigate her Massachusetts divorce in Nevada, the Supreme Court ruled that a state must grant full faith and credit to a divorce degree from another state if both parties participated in the proceedings [10]. The decision inadvertently validated the practice of ‘migratory divorce,’ unintentionally permitting/enabling individuals to travel to a state with more liberal divorce procedures and get a divorce they otherwise couldn’t have. This ruling created a systemic inequality where certain couples could travel to states like Nevada to bypass the potentially stricter fault requirements of their home states. State jurisdiction over the matter was virtually meaningless for anyone with the means to leave state lines. The legacy of Coe highlights the jurisdictional chaos of the era, and previews what couples can expect should fault-only code reemerge.

The California Court of Appeals case Woodworth v. Woodworth (1966) also proved significant flaws in the fault-based system [11]. When a wife declared her lack of love for her husband immediately after marriage and repeatedly abandoned him until he filed for divorce, the court considered whether actions exaggerated in order to obtain a divorce, such as purposeful abandonment, were valid evidence of fault. Lower courts decided that the husband should be denied a divorce due to potential collusion. The Court of Appeals, however, reversed the ruling and granted an interlocutory divorce, meaning the divorce would be (temporarily) granted pending further appeals. The decision stated that even “willful misconduct” could effectively destroy a marriage. This created a loophole for couples to intentionally fabricate fights, engage in flagrant adultery, and desert each other to be granted a divorce despite fault-only laws [12]. Even the judges’ opinion acknowledged that while evidence should not be fabricated, staged beating and distress is still as dangerous and indicative of a failed marriage as any legitimate fault, and should be treated as such.

These cases helped pave the way for California’s Family Act of 1969, which included the nation’s first no-fault divorce code [13]. Almost every state followed suit with no-fault systems of their own throughout the next decade [14]. By 2010, every state had some form of no-fault code on their books. Some states enacted no-fault laws in their purest form, where “incompatibility” is the only legal grounds for divorce, encompassing everything from mismatch of personality to domestic abuse [15]. Other states, such as Texas, adopted hybrid models, where no-fault grounds exist alongside the traditional fault-based [16]. 47 states allow single-sided divorce, meaning when a spouse initiates a divorce, the other spouse does not need to consent for the divorce to be granted. Despite the broad success and popularity of these policies, a resurgence of traditional values in U.S. politics has put no-fault divorce in a precarious position [17].

While divorce isn’t the only route for married couples to split, it offers a distinct legal process that is crucial when children, money, or property are involved. Unlike an annulment, which retroactively invalidates a marriage as if it never existed, divorce acknowledges the union and provides a structured pathway out. The divorce process triggers statutory protections for the equitable distribution of property and formalizes support systems like alimony and child support under the oversight of a court. An informal ‘breakup’ would not only lack this structure, but also retain the label of ‘married’ in the eyes of the law, which has tax and legal implications. For example, tax filing status is different for married couples than it is for unmarried individuals. The ‘married’ label also prevents individuals from remarrying, since a person can only be married to one person at once. And although annulments can dissolve a marriage, the process lacks structure, and is only granted in certain circumstances depending on state code.

Although family code is considered a reserved power under the 10th Amendment to the Constitution, the 14th Amendment offers a number of pathways for protection of no-fault divorce on a national level [18]. Family law has been partially constitutionalized through the Supreme Court since the 1960s. The first application of the 14th Amendment’s Equal Protection Clause to the family was Loving v. Virginia (1967), a landmark case protecting interracial marriage [19]. The Court determined that substantive due process, which ensures states do not infringe upon certain liberties even if they follow proper procedure, was violated by restrictions on the fundamental right to marriage—in this case, the prohibition of interracial marriage. High barriers to divorce that functionally prevent legal separation also prevent involved parties from remarrying, since a person can only be married to one person at a time. The obstacles presented by fault-only divorce infringe upon the substantive due process right to marry, rendering fault-only code unconstitutional. 

Not only did Loving protect the right to marry, but it also implied the right to divorce. The decision also explicitly declared the “freedom to marry, or not marry” as a Constitutional freedom under the Due Process Clause to be exercised without state infringement [20]. The freedom to not marry could be reasonably interpreted by a court as the freedom not to be married, or the freedom from unwanted marriage [21]. Fault-only divorce infringes upon this presumed right by imposing different barriers to exit, preventing people from exercising their right not to marry.

Subsequent decisions expanded the role of federal courts in nationalizing family law [22]. Stanley v. Illinois (1972) overturned discrimination on the basis of sex in child custody cases, eliminating the existing structure of favoring maternal custody on the basis of the Equal Protection Clause [23]. Orr v. Orr (1979) used the same clause to mandate alimony allocation to be gender-blind [24]. Although not directly related to no-fault divorce, these cases create a strong precedent for federal involvement in the otherwise state-operated jurisdiction family law when the 14th Amendment is involved.

Griswold v. Connecticut (1965) additionally expanded federal power over family law [25]. This case concerned the right of a married couple to make their own decisions around contraception. The Court held that the state could not enforce contraception restrictions due to the right to privacy inferred through the Bill of Rights. Violating this right was considered an infringement of the Due Process Clause of the 14th Amendment. By interpreting marriage as a “zone of privacy,” Griswold suggests that the state’s role in regulating dissolution of marriage must also be limited [26] [27]. The Court established the home as a “sacred precinct” that must be protected from excessive state influence [28]. Fault-only divorce subjects couples to mandatory and prying investigations into their private lives, violating the Due Process Clause as interpreted in the Griswold decision. The landmark protection of marital privacy under Griswold provides strong precedent for an extension of these protections to protect couples from mandatory procurement of evidence of fault in divorce cases. 

However, couples in the process of divorce occupy an ambiguous area between marriage and separation. The Court may classify unhappy and dysfunctional marriages as separate from the “sacred precincts” established in Griswold. If this were to happen, Eisenstadt v. Baird (1972), which used the Equal Protection Clause to extend the right to privacy beyond married couples to unmarried couples and individuals, could be used as a supplement [29] [30]. This case involved the distribution of contraceptives to students at Boston University. Massachusetts law only allowed married couples to access contraception, but the Court held that married and unmarried individuals must have the same rights under the 14th Amendment. This means that couples, individuals, and people in-between can all enjoy the right to privacy. 

Both the Due Process and Equal Protection Clauses were used in the landmark 2015 decision in Obergefell v. Hodges, which legalized same-sex marriage at the federal level [31]. The opinion emphasized that the right to marry is “inherent in the liberty of the person” under the 14th Amendment. The Court also emphasized that “decisions about marriage” are “among the most intimate” an individual can make, citing protections of intimate decisions under Eisenstadt and Griswold [32]. By including the ambiguous phrase “decisions about marriage,” the Court included not only the choice to be married, but also the choice to no longer be married. Linking intimate marriage decisions to individual liberty puts the decision to divorce falls under the protection of the 14th Amendment. This means that laws functionally preventing people from making the choice to divorce are an unconstitutional infringement on their personal liberty.

Obergefell also cited 14th Amendment protections of individual dignity, arguing that denying a group the right to marry demeans their dignity [33]. If a state reinstates fault-only divorce, it creates a system where individuals in unhappy marriages are denied the dignity of legal recognition of their actual status [34]. One could argue that forcing a person to stay in a marriage unless they can prove fault subjects them to a state-mandated relationship that no longer exists in reality, harming their constitutional dignity. 

Recently some sects of United States politics have become more vocal in their disapproval of no-fault policies. Vice President J.D. Vance has expressed his outright desire for more difficult divorce [35]. He likened modern divorce proceedings to “changing your underwear,” and suggested that couples remain in dysfunctional marriages to try to work them out instead of separating [36]. The Heritage Foundation, the organization that developed Project 2025, refers to current policies as “on demand” divorce, and claims that “casual” separation is a crucial factor in the decline of family values in the United States [37].

However, no-fault divorce isn’t just a political issue; it’s already made its way into the judicial system. In the 2020 Nebraska Supreme Court case Dycus v. Dycus, the constitutionality of no-fault divorce was challenged on myriad grounds including the free exercise clause of the U.S. Constitution [38]. A husband protested his wife’s petition for divorce, which didn’t need his consent under Nebraska’s no-fault code, because he argued the no-fault divorce code was unconstitutional and violated his freedom of religion [39]. The court resoundingly upheld the state’s no-fault statutes, but the case is an example of recent challenges to no-fault divorce that could eat away at state institutions through new argumentation. 

Support for no-fault divorce, however, remains as strong as ever. Collective memory about the abuse, staged fights, and administrative burden of the fault-based era still haunts many Americans [40]. Women whose husbands beat them in specific ways that minimized bruising can now use the no-fault pathway to escape their dangerous circumstances when evidence wouldn’t have passed old fault tests [41]. Parents with irreconcilable differences can now separate instead of passing trauma onto their young children [42]. Although a divorce is never easy, it is now generally considered the better option as opposed to unstable marriages, and no-fault options make this option available more broadly and more feasibly.

The evolution of United States divorce law from the rigid fault-only era to the current no-fault standard represents more than a shift in administrative procedure; it is a fundamental recognition of individual liberty and autonomy [43]. As history demonstrates, fault-based systems did not preserve the sanctity of marriage. Instead, they created a culture of jurisdictional evasion, inequality, and trauma. The legal precedent established through cases like Griswold and Obergefell support the argument that the choice to exit a marriage is a constitutionally protected decision that cannot be excessively restricted by the state.

While recent political rhetoric and judicial challenges seek to frame no-fault divorce as a threat to societal stability, historical context argues the opposite. The ability to dissolve a non-viable marriage without a state-mandated trial of misconduct is a safeguard for safety, dignity, and guaranteed liberty. To revert to a fault-only system would be to ignore a century of legal progress and return to an era where the law acted not as a facilitator of justice, but as a barrier to constitutional freedoms. Ultimately, the protections afforded by the 14th Amendment make no-fault divorce more than a convenience—it is a constitutional necessity.

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[1] Debra Schoenberg, Fault lines: Is no-fault divorce on unsteady ground in California and nationwide?, DAILY JOURNAL (Mar. 19, 2025), https://www.dailyjournal.com/articles/384354-fault-lines-is-no-fault-divorce-on-unsteady-ground-in-california-and-nationwide.

[2] Donna Hershkowitz & Drew Liebert, THE DIRECTION OF DIVORCE REFORM IN CALIFORNIA: FROM FAULT TO NO-FAULT…AND BACK AGAIN?, (1997).

[3] 

Nicole Veru, The Fundamental Right to Leave: Conservative Attacks on No-Fault Divorce Are Unconstitutional and Promote a Return to the Traditional Family, BOSTON COLLEGE LAW REVIEW (Mar. 30, 2026).

[4] See [1].

[5] Jessie Kratz, Not Just Suffrage: Divorce and the Seneca Falls Convention, PIECES OF HISTORY (Jul. 17, 2023), https://prologue.blogs.archives.gov/2023/07/17/not-just-suffrage-divorce-and-the-seneca-falls-convention.

[6] See [2].

[7] See [5].

[8] See [2].

[9] Coe v. Coe, 334 U.S. 378 (1948).

[10] See [11 = coe].

[11] Woodworth v. Woodworth, 242 (Cal. app. 2d 1966).

[12] See [13 = woodworth].

[13] See [1].

[14] See [2].

[15] Texas Law Help, Divorce in Texas, TEXASLAWHELP.ORG, https://texaslawhelp.org/article/divorce-in-texas.

[16] Texas Constitution and Statutes, CHAPTER 6. SUIT FOR DISSOLUTION OF MARRIAGE, STATUTES.CAPITOL.TEXAS.GOV, https://statutes.capitol.texas.gov/?tab=1&code=FA&chapter=FA.6&artSec=6.001.

[17] See [3].

[18] See [3].

[19] Loving v. Virginia, 388 U.S. 1 (1967)

[20] See [24 = loving].

[21] See [3].

[22] See [3].

[23] Stanley v. Illinois, 405 U.S. 645 (1972)

[24] Orr v. Orr, 440 U.S. 268 (1979)

[25] Griswold v. Connecticut, 381 U.S. 479 (1965).

[26] See [33=griswold].

[27] See [3].

[28] See [33].

[29] See [33].

[30] Eisenstadt v. Baird, 405 U.S. 438 (1972)

[31] Obergefell v. Hodges, 576 U.S. 644 (2015).

[32] See [42 = obergefell].

[33] See [42].

[34] See [3].

[35] See [3].

[36] See [1].

[37] 

Paul Dans & Stevens Groves, Mandate for Leadership: The Conservative Promise (2025).

[38] Dycus v. Dycus, 307 (Neb. 2020).

[39] See [3].

[40] 

Katie Herchenroeder, The Right’s War on Divorce—and Its Costs, MOTHER JONES (Sep. 7, 2023), https://www.motherjones.com/politics/2023/09/no-fault-divorce-texas-republican-gop-crowder.

[41] See [3].

[42] See [3].

[43] See [3].