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No-Fault Divorce and the Legal Definition of Marriage

The conclusion that redefining marriage will materially alter the mix of social benefits marriage provides is supported not only by sound socio-institutional theory, logic, and common sense but by experience with other changes to marriage and marriage-related expectations. Of course, no one can know the precise, long-term consequences of redefining marriage to include same-sex couples. It is simply too soon, and the ways it may affect marriage are too complex to be understood without ample time and extensive conceptual and empirical inquiry. Justice Alito recently made this point: Past changes in the understanding of marriage… have had far-reaching consequences. But the process by which such consequences come about is complex, involving the interaction of numerous factors, and tends to occur over an extended period of time. We can expect something similar to take place if same-sex marriage becomes widely accepted. The long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come.

But compelling cautionary lessons can be drawn from recent changes to marriage law and marriage-related expectations. Perhaps the most relevant cautionary lesson comes from an analysis of the impact of no-fault divorce. No-fault divorce had unintended consequences that weakened marriage and fatherhood, and thus harmed children, and is a likely template for understanding the effects of same-sex marriage. There are many important reasons for no-fault divorce laws. The fault-based systems of the past undoubtedly created many problems and at times serious injustices. Among its benefits, no-fault divorce affords adults greater autonomy and facilitates the end of dangerous, unhealthy, or necrotic unions. Reformers were optimistic that no-fault divorce would have no detrimental effects on children. In fact, as Barbara Dafoe Whitehead has chronicled, many early “experts” provided extensive and intricate rationales for how divorce would benefit children—divorce “for the sake of the children.” Empirically, however, this early optimism has proven short-sighted. Reformers may have reasoned that children’s exposure to harmful parental conflict would decrease and that their parents would readily find greater happiness that would improve parenting. But divorce often does not end parental conflict, and the evidence suggests that parenting quality generally declines with divorce. Also, most divorces come from low-conflict marriages, not high-conflict or abusive ones. And divorce does not lead reliably to greater personal happiness. So as scholars acquired sufficient data to adequately assess the empirical realities of divorce, the evidence revealed less favorable outcomes.

It is true that the children of chronic, high-conflict marriages actually do better, on average, when that relationship ends, furthering societal interests in children’s well-being. But this is not the typical divorce scenario; as mentioned above, most divorces come from low-conflict marriages, and these children do worse when their parents divorce compared to children whose parents are able to sustain the marriage. And most unhappy marriages become happy again if given time, further benefiting their children. Accordingly, the potential salutary benefits of no-fault divorce for one subset of children and parents are balanced against the harms it imposes on another, larger subset of children and parents. A prolonged period of greater instability is a primary contributor to these harms. For most children (and adults), marital dissolution begins a prolonged process of residential and relational instability, as families move and new romantic interests move in and out of the household and many children lose contact with their fathers.

While there is a long list of caveats, and while most children are resilient, the empirical fact remains that, on average, children whose parents divorce are at significantly greater risk for a host of economic, behavioral, educational, social, and psychological problems. Moreover, the impact of no-fault divorce must also be assessed at the institutional level, not just the individual level. Scholars have debated the specific effects of no-fault divorce on subsequent divorce and marriage rates. It certainly contributed to a short-term increase in divorce in the 1970s, but evidence suggests it has also contributed modestly to increased divorce rates above its long-term historical trends.

Regardless of its precise impact, the high rates of divorce of the past half-century have contributed greatly to a psychological climate of marital fragility, which may be influencing current declines in our overall marriage rate as well as further increases in divorce rates. Judith Wallerstein concluded from her 25-year study of the effects of divorce that changes to family life, including the high incidence of divorce, have “created new kinds of families in which relationships are fragile and often unreliable.” Nearly half of all marriages now end in divorce, making marriage seem like a risky proposition for all. This discourages some from entering into marriage at all and keeps the specter of divorce ever-present during times of marital discontent.

Research also has found a contagion effect for divorce, such that a divorce in one’s social circle increases one’s own risk of divorce. The advent of no-fault divorce (with accompanying shorter waiting periods) did not just make it procedurally easier to exit an unsatisfying relationship. It changed the legal and social presumption of permanence in marriage. Intentionally or unintentionally, no-fault divorce diminished the institutional and social expectation of marital permanence. It changed the public meaning of marriage from a legally binding life-long union that was expected to weather the inevitable disappointments and challenges of romantic unions (“for better or for worse”), to a union whose duration depended on the subjective choice of one spouse; the traditional vow “for as long as we both shall live” has been replaced by “for as long as we both shall love.” Before no-fault divorce, our laws reinforced the ideal that divorce should not be a ready option, although it may be a necessity. After no-fault divorce, our laws teach that divorce is always a ready option, even if it is not a necessity.

The legal change of no-fault divorce has to some extent tipped the scales of marriage in favor of adult emotional interests and personal choice over its institutional, child-centered elements. It weakened permanence as a fundamental public meaning of marriage and contributed to a generational shift in attitudes and behaviors within individual marriages in ways that harmed overall child interests. Permanence was not just an element of the legal definition of marriage; it was a primary mechanism by which marriage produced its benefits for children (and adults). The expectation of permanence provides a strong incentive for parents to work through their problems to achieve a satisfying relationship; it encourages parents to prioritize their children’s long-term needs above their own short-term desires; it helps to harness two adults in the rearing of their children. Weakening the expectation of permanence in the legal and cultural understanding of marriage unexpectedly weakened each of these child-centered factors, on average harming the wellbeing of children.

The no-fault divorce experience serves as a cautionary tale, especially with respect to child welfare. The definition of the institution of marriage—its legal rules and norms, and the social and personal meanings and the expectations that flow from them—affects the behavior of all couples within marriage. And that in turn can have profound effects on the overall wellbeing of children, even if the immediate rationale of the change is intended to benefit a specific subset of children and adults.

As with early advocates for no-fault divorce, proponents of eliminating the gendered definition and understanding of marriage confidently predict that such a change will have no adverse consequences for heterosexual marriages or their children. What could be the harm to marriage-related interests of allowing same-sex couples to marry? Indeed, for the vast majority of people, the argument goes, nothing would change: “If you like your marriage, you can keep it.” This recalls the optimistic early thinking about no-fault divorce. Yet some humility is in order. It is unlikely that contemporary thinkers attempting to divine the consequences of another major change to the legal definition of marriage—the removal of gender as a defining pillar—are more gifted at secular prophecy than were thinkers in the early years of the no-fault divorce revolution. Indeed, in our view, the no-fault divorce revolution provides the clearest precedent for rational predictions about the effects of redefining marriage in genderless terms. Knocking out a defining marital pillar of gender is not just a remodeling to make room for more potential residents; it is a major architectural change with potential consequences for the viability of the entire structure of the institution of marriage.

Note: This fellow note is a section from the article “Beyond the Expansion Framework: How Same-Sex Marriage Changes the Institutional Meaning of Marriage and Heterosexual Men’s Conception of Marriage” by Alan J. Hawkins & Jason S. Carroll, School of Family Life, Brigham Young University

Windsor, 133 S. Ct. at 2715 (Alito, J., dissenting); see also id. at 2715 n.5 (“As sociologists have documented, it sometimes takes decades to document the effects of social changes—like the sharp rise in divorce rates following the advent of no-fault divorce—on children and society.”), citing J. Wallerstein, J. Lewis, & S. Blakeslee, The Unexpected Legacy of Divorce: The 25 Year Landmark Study (2000).

(Parkman, 2000, 91-150; Wallerstein, Lewis, & Blakeslee, 2000, p. 297)

(Wallerstein, Lewis, & Blakeslee, p. 297)

(Stevenson & Wolfers, 2006, p.267)

(Whitehead, 1996; pp. 81; see pp. 84-90 for a discussion of predictions of how divorce would benefit children).

See Donald Moir, A New Class of Disadvantaged Children, in IT TAKES TWO: THE FAMILY IN LAW AND FINANCE 63, 67-68 (Douglas W. Allen & John Richards eds., 1999).

(Hetherington & Kelly, 2002, p. 138)

(Hetherington & Kelly, 2002, pp. 126-140)

(Amato & Booth, 1997, p. 220; Amato & Hohmann-Marriott, 2007, p. 621)

(Waite et al., 2002, p.4)

(Amato, 2005, p. 75; Amato, P. R., & Anthony, C. J. 2014 Journal of Marriage and Family, 76, 370-386)

(Amato & Booth, 1997, p. 220)

(Waite, Luo, & Lewin, 2009, p.201)

(Cherlin, 2009, pp. 16-24)

Amato & Anthony, 2014 Journal of Marriage and Family, 76, 370-386

(Amato, 2005, p. 75)

(see Parkman, 2000, pp. 91, for a summary of this research)

(Wallerstein, Lewis, & Blakeslee, 2000, p. 297).

(Bramlett & Mosher, 2001, p. 5; Kennedy, S., & Ruggles, S. (2014). Breaking up is hard to count: The rise of divorce in the United States, 1980–2010. Demography, 51, 587–598.)

(Wallerstein, Lewis, & Blakeslee, 2000, p. xvi); Edin, K., & Kefalas, M. (2005). Promises I can keep: Why poor women put motherhood before marriage. Berkeley: University of California.

(McDermott, Fowler, & Christakis, 2013, p. 491)

See American Academy of Pediatrics Policy Statement: Promoting the Well-Being of Children Whose Parents Are Gay or Lesbian:; Joslin, C. G. (2011). Searching for harm: Same-sex marriage and the well-being of children. Harvard Civil Rights-Civil Liberties Law Review, 46, 81-101.