Massachusetts-based family law practitioners are having a tough
time affirming a nationwide study on the relationship between the
divorce rate and no-fault divorce. An Institute for Marriage and
Public Policy (IMAPP) study concludes that the introduction of
no-fault divorce has increased the divorce rate by 10 percent
Fern L. Frolin, a partner with Grindle, Robinson, Goodhue and
Frolin of Wellesley and chair of the MBA's Family Law Section,
disputes the study and believes there are fundamental inaccuracies
in the study, chief among them the assumptions used to form the
"The most recent U.S. Census data consistently shows the divorce
rate to be down," said Frolin. "Considering the rate of marriage is
down statistically, it would be impossible to deduce a cause and
effect between no-fault divorce and a rise in divorce rates."
The IMAPP study, which reviewed 24 separate studies on the
effects of no-fault divorce, asserts that:
• Couples who marry under no-fault divorce laws may face a
permanent increase in their risk of divorce compared to similarly
well-matched couples who married when divorce laws were stricter
and required mutual consent;
• Divorce law is not the only or primary cause of the increase
in divorce over the last 10 years; and
• The effect of no-fault divorce laws on the overall divorce
rate appears to fade over a long period of time (about a
Data from the National Center for Health Statistics indicate
that the divorce rate for married women increased sharply between
1970 and 1975, a period when divorce laws were changing. However,
subsequent estimates indicate that the divorce rate per 1,000
married women leveled off at about 20 per 1,000 women in the
late-1970s and has stayed at about that level through the
mid-1990s. For its part, Massachusetts instituted no-fault divorce
in 1975 and, according to the U.S. Census, ranks last in the nation
in the rate of divorce.
Patrick W. McDermott, register for the Norfolk County Probate
and Family Court, echoes Frolin's experience. McDermott says the
rate of filings for both marriage and divorce are down and are in
stark contrast to the IMAPP study.
"In Massachusetts alone, one couldn't really make the jump that
no-fault divorce is the cause of an increase in divorce when, in
fact, the marriage rate has clearly gone down," said McDermott.
"The downward trend in the marriage rate alone would be enough to
cast doubt on such a conclusion."
"We're just not seeing increases in either the marriage or divorce
rates claimed in the study," he said. "About the only area we're
showing an increase has been a rise in the number of paternity
cases - cases where more children are being born out of
The genesis for no-fault divorce was to remove acrimony and
contentiousness from divorce proceedings. Cases became difficult to
settle, problematic for the court system and especially difficult
for children involved in the action. Legalistically, no-fault
divorce diminishes the bargaining power of a person who wants to
hold the other person in the marriage.
Given the foundation of no-fault divorce, Frolin says the recent
study on divorce rates doesn't purport to show that the reasons
behind no-fault aren't valid.
"This is not a neutral study," said Frolin. "This isn't the same
as a university pursuing social research out of intellectual
curiosity. This is an organization (IMAPP) whose purpose for being
in existence is to promote marriage, including the continuity of
marriages that may have failed."
From a practical matter, McDermott says no-fault divorce has not
only reduced the animosity in divorce cases, but has lessened the
potential damage to children.
"The adoption of no-fault divorce was to codify a social norm,"
said McDermott. "If there is a direct cause and effect of no-fault
divorce, it has been to make divorce cases less litigious."
McDermott is skeptical of the legitimacy of the study since both
marriage and divorce rates have shifted over the last 40 years.
"Contrasting recent divorce rates to a period in the 1960s, when
marriage rates were rising, doesn't contribute to the accuracy of
the study," said McDermott. "It's extremely difficult to make
conclusions when the benchmarks for comparison (marriage and
divorce rates) have varied so much."
"If there is going to be a divorce - let it be amicable, let it
be fast, let it be simple, and let it be inexpensive," said Frolin.
"Those were the goals of no-fault divorce."