No-fault divorce: What is it?

A Texas state representative has again submitted a bill in the 2017 legislative session that would strike “insupportability,” or “no fault,” as grounds for divorce. Under the bill, because a no-fault divorce would not be available, a couple who wants to dissolve their marriage peacefully will have to live separately for 3 years before filing for divorce. This bill has been submitted before but has never made it to a vote in the state legislature.

Causes for Texas Fault-Based Divorces
Felony conviction & imprisonment ≥1 yr
Abandonment ≥1 yr
Living apart ≥3 yr
Spouse in mental hospital ≥3 yr
(TX Fam Code § 6.001-6.007)

History of no-fault divorce

In a no-fault divorce, a family court can grant a divorce without requiring a showing of wrongdoing by either party.

California was the first state to pass a no-fault divorce law, which was signed by Governor Ronald Reagan and came into effect in 1970. Perhaps Reagan was inclined to sign the law because his first wife, Jane Wyman, had unfairly accused him of “mental cruelty” to obtain a divorce about 20 years earlier. By 1985, every state but one had adopted some form of no-fault divorce. The remaining state, New York, passed its no-fault divorce law in 2010.

What parties did before no-fault divorce

Before laws allowing no-fault divorce, spouses who wished to get divorced had to create legal fictions to bypass the statutory requirements. Three main methods were used:

  1. “Forum shopping”—One spouse would move to a state where no-fault divorce was available, stay there long enough to become a resident, and then file for divorce there.
  2. “Collusive adultery”—Both sides deliberately agreed that the husband would be discovered committing adultery with a “mistress” obtained for the occasion. The judge would convict the husband of adultery, and the couple could be divorced.
  3. “Cruelty”—Wives would regularly testify that their husbands swore at them, hit them, and generally treated them terribly.

Reno Divorce: A forum shopping example

Reno_divorce_3Many have heard of a “Reno divorce.” By 1909, Reno had earned the title of “divorce headquarters” because it required only a 6-month residency. Over the next 20 years, Nevada keep decreasing its residency requirement until in 1931, to help secure the state’s economic health through the Great Depression, it dropped the requirement to a mere 6 weeks.

Another advantage of divorcing in Nevada was the ability to immediately marry someone else without a waiting period.

Wallis Simpson: A collusive adultery example

A well-known version of “collusive adultery” is the story of how Wallis Simpson got her divorce from her husband Ernest so she could marry Edward VIII, then the King of England and later the Duke of Windsor.

In 1936, both the Anglican Church and English law only recognized adultery as a legitimate ground for divorce. Ernest was “discovered” in a hotel bedroom with a recruited friend of Wallis. Ernest gave the friend the nickname Mrs. Buttercup Kennedy to protect her identity.

Wallis Simpson in 1936

Wallis Simpson in 1936

Wallis then filed for divorce on the grounds that Ernest had committed adultery. She was granted a decree nisi, which meant that if no party objected to the divorce it would be granted in 6 months. This compulsory waiting period was mandated because English law refused to accept divorce by agreement. There were other possible difficulties as well in this particular case: Only an “innocent” spouse was entitled to divorce, and some people suspected that Wallis had been the King’s mistress, or at any rate that she had had several other lovers.

Wallis left England and did not see Edward VIII during the 6-month waiting period in an attempt to prevent further investigation. After the 6 months, the divorce was granted, Edward VIII abdicated, and Wallis became the Duchess of Windsor.