What is no-fault divorce?
When you ask most people, they will say Divorce is a mutual-consent process, or that it preserves privacy, or that it eliminates blame for the failure of the marriage.
Not many people will answer that it’s a lawsuit in which one party is suing the other party. And even fewer will know that it came from the Soviet Union.
Like previous divorce actions, no-fault divorce is still a lawsuit, which means that one party is invoking the state’s police powers against the other party. The main difference now is that the person filing for divorce no longer has to provide a reason for why they’re doing it. This type of lawsuit is unique; it’s the only type of legal action devoid of any ‘claim’ (complaint), and if the party being sued doesn’t know the complaint, then there’s no possibility of a defense.
As for the communist origins of no-fault divorce, a 1975 law review article by Donald M. Bolas entitled, “No Fault Divorce: Born in the Soviet Union?” explains how, after speaking with Russian lawyers, he stumbled upon how Soviet divorce law may have influenced our own laws.
Bolas explains that when the Bolsheviks took over in 1917, religious marriages were no longer recognized by the state. Marriage became a “state action” and divorce became merely an administrative process known as Russian Post Card Divorce. One spouse simply filled out the paperwork at city hall and the other party was then notified by mail that they were no longer married. Some people married twenty times. There was also a ‘free love’ bureau where people could sign up for partners.
The fact that this type of law increases the divorce rate is proven every day in the United States. Since the onset of no-fault divorce, the divorce rate doubled with one divorce granted for every two marriages that take place. In terms of sheer numbers, approximately a million divorces are finalized each year, translating into 3,000 divorces every day.
How coincidental that the U.S. divorce rate is among the highest in the world, vying only with Russia!
Another interesting fact about no-fault divorce is how strikingly similar its underlying thinking is to abortion law. In fact, laws dealing with both subjects were being drafted at the same meeting. This is how it all began.
In 1970, a national group of lawyers gathered for their annual meeting at the Colony Motor Hotel in Clayton, Missouri, just outside of St. Louis. At this meeting, two new ‘model’ laws were being drafted and debated. These laws would serve as ‘blueprints’ for state legislators around the country to enact as state laws. The purpose was to create more uniformity in state laws. One of these laws was called the Uniform Marriage and Divorce Act (UMDA) and the other was the Uniform Abortion Act (then, in 1973, Roe v. Wade overturned all state abortion laws).
A common theme found in both of these debates was the word viability and this word would be operative in rationalizing both of these laws.
In the case of abortion, the discussion revolved around the viability of the human life, meaning its potential for survival outside the mother. The divorce debate was similar: a marriage could be terminated “on the basis that it no longer is a viable institution,” according to the transcripts that have been preserved from these debates.
Using viability as the operative term would soften the discussion on divorce, or abortion, making these new laws more palatable to the public. This way of thinking would also help cover up the truth so we wouldn’t have to ‘look’ at the reality: that both are really destructive acts. One act destroys the product of the one-flesh union while the purpose of the other act is to destroy the one-flesh union itself.
During a pregnancy, we now are able to ‘see’ the reality of life due to technical advances. However, in the case of marriage, there isn’t any test. One person’s word suffices. Judges and lawyers don’t check for vital signs in the marriages, which assumes they are all dead on arrival.
The label given to this new type of divorce is something of a misnomer. The term ‘no-fault’ came into the vernacular with the introduction of ‘no-fault’ car insurance. The rationale behind no-fault car insurance was to move cases more quickly into ‘settlements.’
The same is true for no-fault divorce because now the emphasis is on moving cases into mediation where settlements are supposed to be reached, conveniently skipping the step of determining viability. Once a petition for divorce is filed, the marriage is essentially doomed, since no one checks for any pulse.
The term “no-fault” has served masterfully to cover up something that is far more sinister. The idea that the State is forcing people out of their marriages is hard to fathom but because every divorce petition is granted, and none are ever denied, then there are certainly a few viable marriages that meet an untimely death.
Before the onset of no-fault divorce there was a burgeoning activity around the country called the Conciliation Court Movement with the focus on marital reconciliation. This movement began in 1939 when California enacted its Children’s Court of Conciliation Law in order to:
… protect the rights of children and to promote the public welfare by preserving and promoting family life and the institution of matrimony, and to provide means for the reconciliation of spouses and the amicable settlement of domestic and family controversies.
By 1970, Conciliation Courts were operating in Alaska, Arizona, Hawaii, Illinois, Michigan, Missouri, Montana, Nebraska, Montana, North Dakota, Ohio, Oregon and Wisconsin, using a growing body of knowledge and techniques to help restore family life. But now, such lofty goals cannot be found anywhere in our statutes.
When no-fault divorce entered the picture, the emphasis in conciliation courts soon changed to ‘divorce with dignity.’ Settlement negotiations took place under the auspices of a mediator who assisted the courts in keeping the conveyor belt moving.
Is there another possibility? Can distressed spouses find ‘relief’ for their anguish? Could we create Marriage Support facilities that operate in the same way as the Pregnancy Support facilities that offer another answer than abortion? Marriage Support facilities could do the same thing by offering couples the help they need to stay together.
In many ways, the Church might be the perfect home for these facilities. Tribunal offices could incorporate the Conciliation Court model, summoning couples from the civil courts. At this time, spouses are typically directed to Catholic Charities, but this is not enough because the problem requires a blending of both legal and pastoral initiatives.
Also needed are skillful practitioners who are trained in multiple fields. Working with a dyadic relationship is much harder than working with one person individually. Not many practitioners can handle such a challenge without bringing their own biases into the work.
By all appearances we are a nation that wants to defend traditional marriage, as evidenced by the number of state constitutional amendments that have passed. The next step is to protect marriages from being destroyed in this country’s no-fault divorce mills.
Judy Parejko first learned about no-fault divorce while working as a family court mediator. She has spent ten years researching the origin, intent and implementation of this law and is the author of Stolen Vows: The Illusion of No-Fault Divorce and the Rise of the American Divorce Industry. Her forthcoming book delves even more deeply into the story.
[This article originally appeared in  Canticle Magazine, May/June 2009 issue and is posted with permission.]