Around March 20, 2024 – befitting of Women’s History Month – some 800 ultra-Orthodox Jewish Women began a sex strike in New York City, protesting in large part the application of Jewish law to divorce proceedings.  Commonly known as “get”, per traditional Jewish law a divorce is only achieved by a husband issuing a formal declaration in Aramaic.  The process itself also requires the endorsement of three rabbis, which the protestors argue has effectively given men the unilateral right to determine the dissolution of a marriage and leaves many women in abusive relationships without any real means of escape.  One such woman, Malky Berkowitz, has been separated from her husband for four years but he refuses to grant or facilitate the get, leaving her stuck and unable to remarry.  As an “agunah” – a “chained woman” – Malky’s plight has resonated with many women, some of whom have raised signs of “Free Malky” in support.  As part of the latest sex strike, the protesters are refusing to go to the mikvah, a bath where married Orthodox women must cleanse themselves after menstruating before having sex with their husbands, until Malky, and others like her, receive their gets.  No bath means no sex.  

The withholding of sex to effect change is certainly not new and has been employed by women throughout the centuries to end violent struggles and wars.  In 411 BCE, Aristophanes wrote Lysistrata, a comedic play where the women withhold sexual privileges from their husbands and lovers as a means of ending the Peloponnesian War and forcing a truce between the Greek city states.  More recently, in 2003, a united group of some 2500 Christian and Muslim women in Liberia, led by Leymah Gbowee (who would eventually be given the Nobel Peace Prize in 2011) gathered in a fish market visible from Liberian President Charles Taylor’s residence and pledged to deny their husbands and partners sexual intimacy until the civil war in Liberia ended.  However, this recent sex strike in the United States – a country founded upon the principles of individual freedom and equality under the law – has ignited questions regarding the hurdles and obstacles that women have already overcome in terms of divorce and those that still persist today.

A Brief History of No-Fault Divorce in the US and Texas

In 1969, then California Governor Ronald Reagan enacted the nation’s first no-fault divorce law, paving the way for many more women (and men for that matter) to extricate themselves from unhappy marriages.  Although divorce laws continue to vary from state to state, every state has now enacted some form of no-fault.  Prior to this enactment, divorce was not so easily obtained.  The party seeking divorce had to allege and prove marital fault – think adultery, physical abuse, etc. – and also had to prove his or her respective innocence if the divorce was challenged.  If the petitioning party had unclean hands, the divorce was generally denied by the courts.  Many non-adversarial couples who wanted to divorce were forced to create fault-based scenarios or migrate to states that had already enacted no-fault policies. 

The battle for no-fault divorce was not so easily won.  It took more than four decades to end purely fault-based divorce in the United States.  In Texas, no-fault divorce was sparked by the enactment of the Marital Property Act of 1967, a lesser-known piece of legislation spearheaded by attorney, Lousie Raggio, that gave married women the same property rights as their husbands and set the stage for what became the first unified family code in the United States.  Prior to the enactment of the bill, any purchases made by a married woman in Texas from her separate property – property owned prior to marriage or received via gift or inheritance – automatically became community property that was subject to the sole management of her husband.  The act also protected the rights of each spouse in the homestead, ensuring that the same could not be sold without the joint approval of both spouses.  Still further, the act allowed mothers to retain equal rights with fathers regarding the custody of their children in the event of separation or divorce.  Three years following its enactment, Texas enacted one of the first no-fault divorce laws. 

Texas still maintains a hybrid of no-fault and fault grounds for divorce.  At present, most divorces in Texas are obtained on the no-fault ground of insupportability, Texas’ version of “irreconcilable differences.”  Fault grounds consist of adultery, cruelty, conviction of a felony, abandonment, living apart for 3 years or more, and confinement in a mental hospital for 3 years or more.  The past defense of recrimination and adultery on the part of the petitioning spouse has been abolished, meaning that a finding of fault on the part of the petitioning spouse will not prevent a divorce.  Although under the Family Code condonation (forgiveness of a spouse’s wrongs) is still considered a defense to a divorce when a reasonable expectation of reconciliation exists, I have personally never seen that defense successfully applied. 

“Cooling Off Periods” Across State Borders

Like fault and no-fault grounds, the laws regarding “cooling off periods” before a divorce can be obtained vary from state to state.  Most only require a brief waiting period between the filing of the divorce and the granting of the divorce, thereby allowing the courts to at least enact temporary orders regarding children and property while the case is pending.  Massachusetts requires a minimum of 300 days from the date of filing divorce.  Shockingly, other states still require a period of separation before even filing for divorce.  North Carolina and South Carolina both require a mandatory separation period of one year before a spouse can file for divorce, while Delaware, Louisiana, Montana, Vermont and Virginia mandate a six-month separation.  The truly unlucky individuals may reside in a state that requires both a separation period and a cooling off period before obtaining a divorce, making the divorce process unnecessarily long and challenging, especially for the spouse with less money, and setting the stage for a war of attrition. 

Researchers have argued that these cooling off periods are disproportionately harmful and devastating to women, especially those in financially unstable or violent relationships.  Although Texas has a relatively short cooling off period – 60 days from the date of filing – COVID-19 created a large backlog in the family court system, especially in more populated counties like Harris County, Texas, where a divorce spanning a year or more has become the new normal.  I have personally seen in my practice abusive spouses take advantage of this backlog and the cooling off periods in order to deter their spouses from proceeding forward with the divorce. 

The War Against No-Fault Divorce

Without question, no fault divorce has been an important safeguard for gender equality and has directly addressed issues like marital abuse.  Statistical studies have shown that no-fault divorce policies have reduced female suicides by 8-16% and have led to a 30% reduction in intimate partner violence.  From 1967 to 1985 alone, the number of women murdered by their intimate partners in states that had enacted no-fault divorce declined by 10%.  Similar studies have also found that children of high-conflict marriages actually benefit from divorce and that the continuation of the marriage before and during a lengthy divorce process increases stress on children. 

Despite these statistics, a new war is waging, with some politicians and religious groups fighting to rescind no-fault divorce policies and supporting a return to ecclesiastical or covenant marriages.  Their claim – no-fault divorce laws destroy the sanctity of marriage and disfavor men.  In 2016, Speaker Mike Johnson declared that no-fault divorce was partly to blame for America’s “completely amoral society”.  In September 2022, Senator J.D. Vance of Ohio incorporated this argument into his campaign, stating, “One of the great tricks that the sexual revolution pulled on the American populace…is the idea that, like, ‘Well, okay, these marriages were fundamentally, you know, they were maybe even violent, but certainly they were unhappy.  And so getting rid of them and making it easier for people to shift spouses like they change their underwear, that’s going to make people happier in the long term.”  More recently, fringe right-wing political platforms in both Texas and Nebraska have called for an end to no-fault divorce before their legislatures.  Even some female attorneys, including Beverly Willett, have argued that no-fault divorce carries serious constitutional implications and violates the 14th Amendment by depriving individuals of life, liberty, and property without the due process of law. 

Kimberly Wehle, a professor at the University of Baltimore School of Law, keenly observed in response to the rising opposition to no-fault divorce that the Constitution contains no express right to marriage and that the due process protections of liberty more accurately “protect the spouse seeking to end a marriage—and to do so without having to prove to the government that she deserves it.”  As a family law practitioner, I wholeheartedly agree with Professor Wehle’s sentiments and am becoming increasingly concerned about the growing fervor to back track on decades of progress in family law.  Although such a change in the law will negatively affect both men and women litigants alike, the fact that more than two-thirds of divorces are filed by women means that women will be more disproportionately affected.    The end of no-fault divorce would also inevitably lead to more acrimony in an already acrimonious system and could potentially derail the ability of spouses to amicably end their marriages.  Moreover, such a reversal could also prevent abused spouses from escaping their abusers.  After all, abuse is more than a closed fist, and proving emotional or psychological abuse can be extremely difficult.