Some conservatives want to bring back the problematic "fault" divorce system — while removing its protections for homemakers.
Eliminating no-fault divorce is one of the goals of Project 2025 — an initiative put together by advisors from groups like the right-wing Heritage Foundation, to lay out an agenda for a second Donald Trump Presidency. And this is no isolated proposal. Newly minted Republican Vice Presidential nominee J.D. Vance has called no-fault divorce “one of the great tricks that I think the sexual revolution pulled on the American populace.”
What many conservatives want is a return to the “fault divorce” legal system, in which marriage was fundamentally binding unless one spouse — and only one — violated anything on a list of “faults” articulated by states in hodgepodge fashion. Judges had the power to deny divorces for multiple reasons, leaving people who wanted no part of marriage stuck together.
[time-brightcove not-tgx=”true”]Yet, modern conservatives don’t just want to resurrect this system — they want to make it even worse. The fault divorce system assumed men to be breadwinners who were required to continue providing support for their wives if they were at fault for the divorce. It was a part of a social contract in which wives had to provide household labor, ranging from childcare to sex, in exchange for financial security (which after a divorce meant alimony).
But conservatives only want to bring back fault divorce — not the alimony regime that existed with it. This selectivity would make the system even more dangerous for the “traditional” homemakers that Project 2025 also demands.
The fault divorce regime was a colonial legal concept that loosened slightly with the arrival of the American Revolution, on the basis that wives should be able to free themselves from husbands who had wronged them. Over the next several decades, individual states added new faults, and each one had a different set of rules.
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In some states, for example, the only violation was adultery. Other states had a long list of faults, such as abandonment, cruelty, and drunkenness. Often the law required a witness to prove that spouse’s fault; in Illinois, for example, a witness had to observe a husband striking his wife twice for the wife to qualify for a divorce for cruelty.
If both spouses had violated marriage laws, judges sometimes left them married, even if neither wanted to be. A judge could also deny a divorce to a couple if they were thought to be working together to manufacture a fault. Such a decision meant that each partner could not remarry. Nor could they deny their spouse access to their bank accounts, their home, or their bodies.
Some couples could get around such rules by going to a state with a reputation as a “divorce mill,” with many faults that justified a divorce and lax residence requirements. In the 19th century, Indiana had this reputation, and in the 20th century, Nevada took its place.
Since the fault divorce system was built around men as breadwinners, courts forced husbands to remain responsible for providing for their wives if they were at fault in a divorce. Husbands had to give their former wives alimony either until the women remarried or died. In practice, judges only ordered middle-class husbands to pay alimony, but it was a real and continuing obligation for many men.
This system largely remained intact until the late 1960s, when as the common narrative goes, the activism of second-wave feminists led states to start adopting no-fault divorce. The historical reality, however, is far more complex. Legal purists at the American Bar Foundation who worried about collusion undermining the rule of law and early men’s rights activists like the American Divorce Association for Men contributed just as significantly to the movement towards no-fault divorce.
The first blow struck against the fault divorce regime came in California in 1969 and other states quickly followed suit. New York was the extreme latecomer — taking until 2010 to join in. The new system took the decision to divorce away from the judge and bestowed it on the spouse who wanted to separate.
But that wasn’t the only thing that changed as the system evolved. Lawmakers quietly remade not only how couples exited a marriage — but also what they owed each other after. Over the course of the 1970s, legislators came to believe that it made no sense to mandate that husbands have a lifelong commitment to being a breadwinner. In debates, legislators articulated various reasons for questioning this concept under the new divorce regime, including fault no longer dictating separations and women’s increasing participation in the workforce. Some legislators also voiced blatant anti-feminist frustration.
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The result was that many legislatures not only enacted no-fault divorce, but also made alimony temporary — two to five years in most cases. Judges, too, slowly began to diminish what husbands owed in child support as they held more mothers increasingly responsible for a larger portion of childcare expenses. These changes increased poverty rates for women and children.
Therein lies one of the ironies of conservatives’ push to abandon no-fault divorce. While they argue that restoring this system would protect the family, they only want to selectively resurrect it. They aren’t, for instance, also calling for a return to the companion policy of life-long alimony. If anything, there are calls to roll back alimony even further.
Conservatives praise the era of male breadwinning, but they want to make it elective rather than the legal duty that it was in the period they claim was marriage’s golden age.
The desire of conservatives to resurrect only parts of this regime is no accident. Their vision for marriage laws would give men privileges they once had, but not the attendant obligations. Wives would have obligations, but few privileges.
This vision for marriage also includes a push by parts of the conservative legal movement, including Supreme Court Justice Clarence Thomas, to unwind substantive due process — the legal foundation for the right to marry, which helped to legalize interracial and gay marriage.
But the restoration of fault divorce alongside the collapse of the right to marry would be an even worse marital regime than the one that, for decades, trapped women in abusive marriages, held women to higher expectations than their husbands, and excluded single people and interracial and queer couples from a vast set of rights. The original fault divorce era was not a golden era for marriage. But the conservative movement proposes something even worse. They are calling for the strictures of the past but none of the structures that required Americans to hold each other up.
Alison Lefkovitz is an associate professor in the federated history department at the New Jersey Institute of Technology and Rutgers-Newark. She is the author of Strange Bedfellows: Marriage in the Age of Women’s Liberation (Penn Press, 2018).
Made by History takes readers beyond the headlines with articles written and edited by professional historians. Learn more about Made by History at TIME here. Opinions expressed do not necessarily reflect the views of TIME editors.
