Lawyers Journal

Family law practitioners dispute accuracy of study linking no-fault divorce with a rise in divorce

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 nationwide.

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 conclusions.

"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 decade).

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 wedlock."

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."

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