The Fundamental Right to Leave: Conservative Attacks on No-Fault Divorce Are Unconstitutional and Promote a Return to the Traditional Family

In 1969, California became the first state to adopt no-fault divorce. Soon after, the rest of the United States followed and today all fifty states have no-fault divorce laws. Now, the Republican Parties in Louisiana, Texas, and Nebraska are challenging no-fault divorce, with some advocating for covenant marriages. No-fault divorce has led to significant benefits for women, including decreasing domestic violence and female suicide rates as well as promoting female autonomy by providing a means for women to unilaterally leave oppressive marriages. This Note examines how the removal of no-fault divorce is out of sync with the liberal rights developments in family law that remove gender performativity from numerous legal issues, specifically alimony, custody, and parentage. Furthermore, this Note argues that the removal of no-fault divorce is unconstitutional based on the Supreme Court’s interpretation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment in Obergefell v. Hodges.