2024 will be one of the most memorable years in United States history due to a highly controversial presidential cycle, and some commentators believe that the result could affect divorce laws across the United States. While every presidential election is met with at least some controversy, this time, things seem especially tense. But is there any real truth to these rumors? Could the outcome of a federal election really affect the way individual states handle divorce?
The Prospect of a Ban on No-Fault Divorces: Reality or Paranoia?
On December 7, 2024, OpenDemocracy published an article alleging that no-fault divorce was under threat. According to this report, certain figures on the right have “targeted” the legal process of no-fault divorce and plan to ban it altogether across the nation. However, it is important to note that individual states, not the federal government, set their divorce laws. According to the National Constitution Center, “state governments remain the primary authority to define marriage and its benefits.”
Despite these limitations on the federal government, the article goes on to state that Mike Johnson – the Republican Speaker of the House – has been calling for the nationwide abolition of no-fault divorce. However, his comments seem to merely suggest that the practice is immoral. More than two decades ago, he also stated that “any deviation from [no-fault divorce] seems radical.” This is hardly an outright call for the end of no-fault divorce, nor does it suggest any future attempt to set state divorce laws with federal jurisdiction.
Should Divorce Laws Fall Under Federal Jurisdiction?
The points raised by those fearful of a Republic victory raise a much more complex debate on the federal government’s jurisdiction over marriage and divorce in the United States. The underlying source of paranoia seems to be the fact that individual states have the freedom to decide their own divorce laws. Underneath the fears expressed by certain commentators, a more subtle message can be identified: Divorce laws should be established by the Federal government.
A 2023 article by Time entitled “America Makes It Too Hard and Dangerous to Get Divorced” outlines this goal with the following statement:
“The ability and time it takes to end an unhappy or unsafe marriage should not depend on whether you live in the Carolinas or California.”
This is a clear argument for federal jurisdiction over divorce laws – and federalism is always controversial in the United States regardless of the underlying issue.
What does this all mean for the upcoming election? It seems as though those who fear a ban on no-fault divorce think that federal jurisdiction is the best way to combat this imagined threat. But could a Democratic win actually facilitate new federal divorce laws? Such drastic changes seem highly unlikely given the established jurisdiction of individual states over family laws. On the other hand, there is very little evidence that the Republicans are planning to ban no-fault divorce on a national level, and they are more likely to simply maintain the status quo. In fact, calls for federal jurisdiction over divorce laws seem to be coming from the left – not the right.