A Historical Perspective of No-Fault Divorce Laws in Ohio

The Pros of a No-Fault Divorce Can Cause Positive Ripple Effects

The 1970s-known for disco, bell bottom jeans, lava lamps, muscle cars, the Brady Bunch, Pong, and the first Concorde commercial flight-but what about divorce? In the 1970s a revolution took place in the United States. Not the British Invasion, but rather a divorce law revolution. In the 1970s alone, 37 states amended or repealed divorce laws, now allowing married couples to divorce under a “no-fault” system. Under the old, “fault-based” scheme, one party would have to be found guilty of adultery, abandonment, physical or emotional abuse, or a protracted separation period (at least 2 years), etc.

Generally, under this scheme, if an individual seeking a divorce could not prove that one of the previously listed grounds for divorce was present, American courts would not grant the divorce. Without evidence proving their partner was engaging in atrocious acts, an individual was forced to remain in their marriage. A policy argument in favor for the sweeping change in divorce laws is that under the prior “fault-based” scheme, individuals who wished to divorce often did so through perjury and falsification of evidence to get around the strict statutory requirements.

No-fault divorce laws allow married couples to file for divorce due to the “incompatibility” of the parties without having to prove a party at fault, as well as allowing for couples to divorce upon a showing that they have been living separately ranging anywhere from three months to two years. In this scenario, both parties are potentially responsible for child support/child care, and spousal support and property can be awarded on the basis of financial resources of each party, rather than on the basis of fault.

Have No-Fault Divorce Laws Negatively Impacted the Divorce Rate?

The answer to this question is largely contested and uncertainty remains. In 1870, nationally, there was one divorce to every thirty-two marriages. Fast-forward eighty-two years to 1952, when nationally there was one divorce to every 3.8 marriages. In Ohio alone, there was one divorce to every 2.8 marriages in 1952. But no-fault divorce laws  were yet to surface at that point in time. In fact, in Ohio, the 10 enumerated grounds for a fault-based divorce today have remained the same since 1853, with minor changes. From 1853 to 1952, 99 years passed where the divorce rate climbed to one divorce to every 2.8 marriages in Ohio, without a major change to the divorce laws.

In 1974 The Ohio state legislature, in an attempt to keep up with the increasing cultural shift toward divorce at the state and national level, created the states first no-fault divorce law. The law required a showing that a married couple lived separately for two years. This law was amended in 1982, to decrease the required separation period to one year. Seven years later, in 1989, an additional no-fault provision was passed that provides for a divorce based upon the “incompatibility” of the parties.

The Ohio 1989 incompatibility statute looked most like the no-fault divorce laws in other states, except that it required the consent of both parties. Because of the additional requirement of both parties’ consent, the incompatibility statute in many cases was more restrictive than the one-year separation requirement. Section 3105.01 of the Ohio Revised Code enumerates all the grounds for divorce, including the no-fault provisions found in subsections (J) and (K).

Actual Effect of the No-Fault Divorce Laws Are Skewed

Uncertainty of the effect of no-fault divorce laws on the divorce rate exists because the various findings of different studies are attributable to the different effective dates used for when states became no-fault divorce states. For example, in three different studies, Ohio’s effective date for becoming a no-fault divorce state is: 1974, Excluded, and 1982. Those three studies also set varying years for other states, and in the aggregate, the results of the actual effect of the no-fault divorce laws are skewed. Regardless, some studies found that there was no significant relationship between the no-fault laws and the divorce rate in the states, while some studies say there was in fact a negative impact. Other studies show that no-fault laws had a positive effect on state divorce rates.

How could a law that allows seemingly every married couple to get divorced actually decrease the divorce per marriage rate?

The U.S. Census Bureau says studies have shown that when laws make divorce quicker and easier, unexpected positive ripple effects tend to flow including:

• The number of marriages increases by at least 9%
• Female suicides decrease by 8% to 16%
• Domestic violence decreases by around 30%

Conclusion

Overall, the pros of a no-fault divorce are that it is quicker, easier, and less expensive than at-fault divorces. While uncertainty still exists as to whether no-fault divorce laws have had a negative impact on the divorce rate, I’d rather be optimistic. What if state legislatures never enacted no-fault divorce laws? Seeing as though the divorce rate in Ohio in 1952 was one divorce to 2.8 marriages consummated before any no-fault laws were enacted, wouldn’t people wise-up and choose not to marry given the obstacles it took to get divorced? Especially given that about one in three marriages in Ohio was ending in a divorce, what would be the appeal? Finally, the no-fault divorce law American revolution was impactful enough that all 50 states have no-fault divorce laws in effect today.

Publisher’s Note:

I want to thank Shane McDonough, a third-year law student at the University of Dayton School of Law, for researching and writing this article. Shane is externing with us this semester. Excellent job Shane! Well done! Glad to have you as part of our HCM&M team!

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