How a Return to Fault-Based Divorce Could Reshape Couples Therapy: Navigating a New Social Contract

Sunday, November 11, 2024. This is for DG in particular.

As discussions around fault-based divorce re-emerge in American politics, couples therapists are increasingly confronted with questions about how this shift could affect the therapeutic landscape.

For decades, no-fault divorce has enabled unhappy spouses to end dead marriages without needing to establish fault, promoting less adversarial separations.

However, if certain conservative-led efforts to repeal no-fault divorce succeed, the change could redefine marriage’s social contract, placing greater emphasis on permanence and responsibility—and creating new challenges for therapists aiming to support healthy relationships and personal well-being.

Why is Fault-Based Divorce Back in the Conversation?

The recent political push to roll back no-fault divorce is seen by some advocates as a way to “preserve the institution of marriage” in a society they argue is increasingly individualistic.

Marcia Zug, a family law professor at the University of South Carolina, explains that the momentum to end no-fault divorce mirrors other recent shifts in family and reproductive rights. She suggests that the effort to revert to fault-based laws is influenced by similar ideological beliefs, emphasizing the collective value of marriage over individual autonomy (Zug, 2023).

This move reflects a broader backlash, a cultural critique of individualism, positioning seemingly capricious, no-fault divorce as an “easy out” that allegedly weakens family structures and is also seen as a harm to children.

Conservative policymakers in states like Texas, Nebraska, and South Dakota have already introduced legislation to limit or remove no-fault divorce, particularly when children are involved.

They are trying to bring some sort of sacred accountability to a secular cesspool.

There are aspects of this aspiration which are relatable, especially if you’ve seen brutal, cavalier behavior on the part of some of your clients in couples therapy.

Though none of these bills have yet passed, they signal a growing momentum to reshape divorce law along more traditional lines, which could impact our ability to exit marriages that no longer serve our mental, emotional, or physical well-being (Bellware & Timsit, 2023).

The 2024 election wasn’t just a political mandate, many see it as a cultural turning point as well.

Couples therapists, please take note!

Potential Impacts on Couples Therapy

If fault-based divorce again becomes the norm, couples therapy, if it survives at all, will inevitably need to adapt to a more blame-focused and adversarial legal climate. Here are some key ways this shift could reshape therapeutic practice:

• A Shift from Openness to Self-Protection in Therapy
  One of the benefits of no-fault divorce has been the ability to end a marriage without attributing blame, creating an environment that encourages honesty and vulnerability in therapy.

  Under a fault-based regime, clients may become more guarded in therapy sessions, fearing that admissions of struggle or mistakes could later be used as “evidence” in court.

• This dynamic could undermine and chill the open communication that is essential for meaningful therapeutic progress, complicating efforts to mediate and heal.

• Heightened Legal and Emotional Barriers for Women
  Studies show that women initiate the majority of divorces, often citing reasons that might not meet traditional “fault” criteria, such as emotional neglect or growing incompatibility (Rosenfeld, 2017).

  Without no-fault divorce, women in controlling or abusive relationships could face significant barriers to exit, including emotional exhaustion and financial strain, as they attempt to legally “prove” their partner’s abuse or misconduct.

  This would likely place added pressure on therapists to support clients through the compounded trauma of both a failing marriage and a high-stakes legal battle.

• Increased Pressure on Marital Permanence and Gender Roles
  As a fault-based framework prioritizes a view of marriage as a permanent and perhaps sacrificial institution, therapists may find themselves helping clients navigate expectations about duty, sacrifice, and traditional roles.

  This could result in a cultural shift where folks feel pressured to stay in unfulfilling or unhealthy marriages for the perceived good of the family or community.

  Therapists would need to balance respect for these values with an emphasis on their clients’ mental health and individual rights. Yikes.

• Challenges in Safeguarding Children’s Well-Being Amid Heightened Conflict
  Fault-based divorce proceedings have historically been contentious and prolonged, increasing the likelihood of high-conflict divorces.

  Children in these situations are often exposed to intense parental disputes, which can lead to lasting emotional and psychological impacts (Emery, 1999).

  For family therapists like me, providing tools to mitigate conflict and protect children’s well-being would become even more crucial, as parents navigate the legal and emotional strains of fault-based divorce.

• Therapists as Advocates for Client Safety and Well-Being
  Under fault-based divorce, therapists may be compelled to assume a more active advocacy role, particularly for clients without the resources to engage in prolonged legal battles. Which is why they may never be invited to the party in the first place.

  In cases where clients face significant financial or emotional barriers to exiting a marriage, therapists might become a key support system, helping clients explore legal options, connect with resources, and build resilience for the challenges of a fault-only system. But I doubt it, seriously.

Fault-Based Divorce as a Reflection of a Changing Social Contract

The possibility of returning to fault-based divorce aligns with an emerging social contract that emphasizes marriage as a collective commitment rather than an individual choice.

Family law scholars like Joanna Grossman highlight that no-fault divorce laws were originally enacted in the 1970s to protect spouses from the stigma and adversarial nature of fault-based divorces, as well as to streamline an overburdened court system (Grossman, 2002).

However, fault-based divorce advocates argue that its removal will strengthen family bonds and discourage the “disposable” mindset toward relationships that they see as weakening American values.

Ethical Dilemmas for Couples Therapists in a Fault-Based System

Therapists may face new ethical considerations if fault-based divorce returns. And we best start considering them now.

The therapeutic alliance often rests on a foundation of trust, confidentiality, and mutual respect for clients’ autonomy.

If America moves toward a model that prioritizes marital permanence over personal fulfillment, therapists might encounter clients who feel “guilty” for contemplating divorce, even when their well-being is clearly being compromised.

This societal shift would require therapists to reaffirm their role as protectors of client autonomy, helping folks explore all options with compassion and without judgment.

For therapists, the ethical challenge will likely involve balancing a client’s desire to honor cultural or religious values with their right to emotional safety and personal growth.

As society potentially revises its social contract around marriage, therapists must continue to offer a safe space for clients to navigate their unique situations without the influence of societal pressure or fear of legal repercussions.

Does Couples Therapy even have a Role in an Evolving Legal Landscape?

The potential resurgence of fault-based divorce could redefine marriage as a social contract centered around responsibility, permanence, and collective stability.

Assuming that couples therapy even survives this massive cultural shift, this shift would mean adapting to a more complex and high-stakes environment, where each decision carries personal and societal implications.

As we navigate these changes, Couples therapy itself may be lost as a sacred space for partners to explore their relationships in a nonjudgmental setting, balancing the new legal and cultural pressures with our clients’ rights to well-being, growth, and autonomy may present an utterly hopeless task.

Instead of pursuing good, science-based couples therapy, I suspect that most couples in a fault-based regime, will stay home instead.

Be Well, Stay Kind, and Godspeed.

REFERENCES:

Bellware, K., & Timsit, A. (2023, October 11). Women fear Republicans will move to overturn no-fault divorce laws. The Washington Post. https://www.washingtonpost.com

Emery, R. E. (1999). Marriage, divorce, and children's adjustment. Sage Publications.

Grossman, J. L. (2002). Family law: Cases and materials. Aspen Publishers.

Rosenfeld, M. J. (2017). Who wants the breakup? Gender and breakup in heterosexual couples. American Sociological Review, 82(2), 385–415.

Zug, M. (2023). Family law and changing divorce policies: The political momentum behind fault-based divorce.South Carolina Law Review, 74(4), 389–416.