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  No-Fault Divorce: The Case Against Repeal

  Joanna L. Grossman and Elicia Grilley Green

  The Texas Legislature has recently been presented with House Bill 93 (“HB 93”), which aims to eliminate no-fault divorce for individuals seeking a divorce without the consent of both parties.

  This paper refutes every argument made by supporters of the bill, showing why no-fault divorce is an appropriate and necessary option for the dissolution of an unsustainable marriage. The best argument against HB 93 is the history of fault-based divorce itself, which demonstrates the bill’s flaws in spades. Fault-based divorce neither lowers the divorce rate, nor alleviates the effects of divorce on children. There is no contractual or constitutional right to stay married over the objections of one’s unhappy spouse, nor any “due process” right to defend oneself against the claim that the marriage has failed. Moreover, the legal and constitutional objections to fault-based divorce have no basis in law, policy, or logic. In fact, the proposed change to no-fault divorce raises more concerns than it addresses.

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  Repealing No-Fault Divorce Would Harm Survivors of Domestic Violence in Texas

  Judge Elmo B. Hunter Legal Center for Victims of Crimes Against Women

  For the past two legislative sessions, the Texas Legislature has explored the repeal of no-fault divorce in the state. This paper explains why such action would be detrimental to the more than five million survivors of domestic violence in Texas. Briefly stated, requiring proof of fault in order to obtain a divorce imposes financial burdens that trap victims in abusive relationships and increases the risk of harm and lethality.

  The economic impacts of repealing unilateral no-fault divorce will adversely affect not only victims of domestic violence but also the State of Texas itself. By its nature, fault-based divorce is significantly more expensive than no-fault divorce. The high costs associated with proving a fault ground will become a barrier to divorce for survivors of domestic violence, particularly the 94 to 99 percent of victims who experience economic abuse along with physical violence and therefore lack access to financial resources. Furthermore, the under-resourced family court system will face mounting burdens as fault-based divorces alleging domestic violence are more likely to be contested. These contested fault-based divorces not only clog the dockets of judges but also impose significant demands on court personnel who must guide and advise pro se litigants (who comprise the majority of litigants in family court) through complex divorce proceedings. Lastly, if fault-based divorce is cost-prohibitive for survivors and they are trapped in abusive relationships, the costs of domestic violence to the State of Texas – such as medical and mental healthcare and shelter stays – will increase as well.

  Finally, the repeal of no-fault divorce will also increase the risk of lethality and psychological harm to domestic violence victims and their loved ones. In 2016, 40 percent of women murdered in Texas were attempting to leave their relationships. The data suggest that in a fault-only system, a victim may be deterred or prevented from getting a divorce, forcing her to remain in an abusive relationship due to a fear of retaliation coupled with the lack of sufficient evidence necessary to prove fault. Furthermore, the requirements of the fault-based system re-victimize survivors of domestic violence by compelling them to re-live their traumatic experiences in the courtroom and allowing their abuser to use the justice system to perpetuate a cycle of power and control. Finally, a fault-based regime that prevents women from escaping abuse also traps their children in hostile environments where they may be subjected to physical violence or develop health and behavioral issues due to the stress of living in an abusive home.

  In consideration of the significant hardships to both victims of domestic abuse and the State of Texas that would result from a repeal of no-fault divorce, any bills proposing repeal should not be enacted into law.

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  Taking Aim at Family Violence: A Report on the Dallas County Gun Surrender Program

  Laura Choi, Rachel Elkin, Monica Harasim, and Natalie Nanasi

  The Dallas County Gun Surrender Program (“the program”) provides domestic violence offenders who are legally barred from possessing firearms a safe and secure way to surrender any guns they own. Existing state and federal laws prohibit offenders from possessing firearms for a statutorily-specified period of time; offenders who violate the law by possessing guns also expose themselves to criminal penalties. However, prior to the launch of the Program, offenders in Dallas County had few ways to comply with these laws or were unaware that they were required to surrender their firearms. As a result, many offenders continued to possess firearms illegally. This report unequivocally concludes that the Program is a vital part of county-wide efforts to protect domestic violence survivors from gun violence. However, the Program is dramatically underutilized. Only a handful of judges refer guns to the Program. Key stakeholders are not collaborating to expand the Program’s operation or to hold noncompliant offenders accountable. The Program is struggling to develop an independent identity apart from the misdemeanor family violence courts, and is hampered by insufficient communication between the many law enforcement agencies, prosecutors, city attorneys, and judges in the county who are tasked with protecting survivors from abuse.