This article by Marie Briner was originally published on TexasLawyer.com.
Before 1970, Texas residents were required to prove the most awful things about their spouses to get a divorce.
They sent private detectives to capture photographic evidence that showed what a bad person their husband or wife was. Family law attorneys had to lay out the parties’ most intimate secrets in court to convince a judge or jury to free them from each other.
The process was deceitful and unkind. What’s worse, it could leave litigants bitter and angry with each other, unable to settle their differences in the best interest of children and themselves.
Then the Texas Legislature passed a no-fault divorce statute. From that point on, divorcing couples could claim that the marriage was insupportable to gain their freedom. Today every state has some kind of no-fault statute, making divorce much easier to obtain.
House Bill 93, filed in the current legislative session by Fort Worth state representative Matt Krause, would remove insupportability as a reason to grant a divorce. Once again, litigants would have to go to court and prove that one of them was at fault. They could only divorce if they had lived apart for three years before filing, proved their spouse guilty of cruelty, adultery, or abandonment, or one spouse was convicted of a felony or confined to a mental institution.
Krause filed his bill on behalf of Texas children. The bill would probably reduce the number of divorces, and studies show the struggles endured by children of divorced parents. As the father of five children himself, Krause just wants all kids to have a chance at a productive life. The question is, would removing no-fault divorce make the situation better or worse?
Without a doubt, no-fault divorce led to more divorces, in Texas and around the country.
The rate of divorce in Texas in 1970 was 4.6 divorces for every 1,000 people. That rate shot up to 6.9 divorces per 1,000 people in 1981, then leveled off and started a decline in the late 1990s.
But the rate dropped to 2.7 divorces per 1,000 people in 2014, the last year statistics are available from the Texas Department of State Health Services. This mirrors the national trend. The popular notion is that 50% of all marriages fail. The percentage has been closer to 40% for the past few years.
No-fault doesn’t seem to have much to do with that trend. Social scientists claim the increase in people cohabitating has led to a decrease in the number of marriages, and less marriage means less divorce.
With fewer divorces, you might think family lawyers in the state would welcome a law that forced clients into court and made them more dependent on experienced legal help. But most family lawyers are against the measure. No-fault divorce is complicated enough, and often leads to tension and anger that can spill out all over the family. Passing House Bill 93 into law would unfortunately make divorce more expensive, time-consuming, and angry.
Steve Bresnan, an Austin-based attorney representing the Texas Family Law Foundation, which opposes the proposal, calls it a move “backwards to the bad old days.” He is quoted as saying, “The entire nation moved away from a fault-based divorce system precisely because of the ugly things that came from it.”
Bresnan sees a profound effect on the practice of family law if divorce is fault based. “Lawyers would be ethically bound to increase or resist discovery around the issue of proving or defending against evidence of fault, which will drive up costs, not to mention acrimony.”
The outlook would be even worse for the poor, who often can’t afford a lawyer, and victims of domestic violence. Before entering private practice, I served as Deputy Chief of the Child Abuse Division in the Dallas County District Attorney’s office. I saw victims of domestic violence barely able to get through their days. Only the most resourceful can formulate and execute a plan of escape for them and their children. Very few victims could confront their abuser in court or anywhere else.
People are already skeptical when a spouse makes accusations of domestic violence. Would a requirement that a person prove fault in a divorce cause further skepticism surrounding a claim of domestic violence? Would people wonder if that spouse is making that claim solely to get a divorce? In this way, this new law would also affect the practice of criminal law.
Krause’s plan to do away with no-fault divorce is based on worthy goals – reducing divorce, taking children out of conflict, giving a spouse who doesn’t want a divorce a chance to fight it, and preserving the sanctity of marriage.
But there are good, practical reasons why every state has a no-fault statute. The reality is that no-fault is necessary to keep conflict from going off the chart.