An Empirical Study of Property Divisions at Divorce

Much has been written about family law and how to fairly divide property between divorcing spouses. Without a good understanding of what courts are doing in the field, however, there is no baseline for theoretical frameworks. This Article fills the void by analyzing all divorce cases involving children that were filed in one county over several months. The resulting empirical data has implications for the meaning of fairness in divorce, the role of judicial discretion, and the incentives for contracting by couples. This Article also examines the underlying law in order to explore the correlation between the family law code and judicial outcomes

Missing Contracts: On the Rationality of not Signing a Prenuptial Agreement

Many couples do not sign prenuptial agreements, even though this often leads to costly and inefficient litigation in case of divorce. In this paper we show that strategic reasons may prevent agents from signing a prenuptial agreement. Partners which have high productivity in marital activities wish to signal their type by running the risk of a costly divorce. Hence this contract incompleteness arises as a screening device. Moreover, the threat of costly divorce is credible since the lack of an ex-ante agreement leads to a moral hazard problem within the couple, which induces partners to reject any ex-post amicable agreement, under specific circumstances. We also investigate conditions that make this contract incompleteness an optimal form of contracting and we briefly discuss the effects of enforceable and/or mandatory premarital agreements on the rate of divorce and on the social welfare. Finally, our model suggests that there is no major objection in making prenuptial agreements enforceable, but also that there are not good reasons to make them mandatory.asymmetric information, incomplete contracts, prenuptial agreement.

Polygamous Marriage, Monogamous Divorce

Could the constitutional right to marry also encompass polygamy? That question, which has long intrigued legal scholars, has taken on even greater significance in the wake of Obergefell v. Hodges. This Article answers that question in a novel way by scrutinizing the practice of plural marriage through the lens of economic game theory, exploring the extreme harms that would befall the state should polygamy become law. More specifically, the Article delves into the ex ante consequences of legalization, not on practicing polygamists (as is typically the focus), but on sequential bigamists—that is, those who never intend to have more than one spouse at any given time but who nonetheless marry more than one person in their lifetime. The Article concludes that the state has a compelling economic interest in limiting marriage to two people. If polygamy were to become the law of the land, states could no longer prohibit bigamy. In turn, separating couples would lose one of the strongest incentives they currently have to choose formal divorce proceedings over the seemingly simpler option of mutual desertion: the threat of criminal charges for bigamy. In essence, a sequential bigamist could then marry multiple times in his lifetime without ever divorcing and, at the same time, without risking a criminal charge of bigamy. Such actions—dubbed “sequential polygamy”—would compromise the state’s interest in protecting its citizens from financial harms. After all, divorce proceedings provide the state with an opportunity to intercede into the process, thereby obtaining some assurance that those who are leaving a marriage are not doing so at their financial peril. With the legalization of polygamy, however, bigamy becomes a thing of the past, eroding the state’s ability to encourage divorce as a means of safeguarding the health and safety of its citizens. Most concerning is the impact this change would have on those living in poverty—the people likely to be hardest hit by any societal shift away from formal divorce. Finally, any attempts by the state to distinguish between bigamy and polygamy (for example, by permitting plural marriage but only if all spouses consent), would fail to ameliorate the resulting harm to its citizens

Human well-being and causality in social epidemiology

This paper discusses the work of Ballas and Dorling on life events and happiness. I believe epidemiologists have things they could learn from economists (and vice versa). Here I emphasize the issue of how to establish causality, and try to suggest some ways forward

Alimony: What Social Science and Popular Culture Tell Us About Women, Guilt, and Spousal Support After Divorce

Over the past few decades, fewer divorcing women have received alimony, and when alimony awards are made, they are in declining amounts and for shorter periods of time. Conventional explanations of this trend focus on legal changes that have made divorces easier to obtain, as well as social changes that have led to larger numbers of married women in the paid workforce, and to greater social tolerance of divorce. Certainly these changes partly explain the downward trend in alimony, but they do not fully explain why alimony awards continue to decline, even among women who do not have viable job skills at the time of divorce and who experience severe post-divorce financial hardship. This article looks to the women themselves and uses social science research to examine gender differences in emotional reactions to marriage and divorce. The article argues that women\u27s tendency to assume emotional responsibility for the success of the marriage and parenting, and in particular women’s greater susceptibility to feelings of guilt and shame about divorce and parenting, make it difficult for many women to successfully negotiate for alimony. Further, the article looks at women\u27s feelings and behaviors in negotiation situations, arguing that social pressures exacerbate the feelings of guilt over the divorce and lead women to accept unfavorable outcomes. Ultimately, this article concludes that the legal system may need to impose solutions, such as mandatory pre-nuptial agreements or alimony formulas, in order to achieve a degree of predictability and fairness in alimony outcomes

A Case Against Collaboration

In family law, as in other legal disciplines, the use of alternative dispute resolution has dramatically increased. In a process called collaborative divorce, separating spouses hire attorneys who agree to work together—almost entirely outside of the court system—to reach a settlement ending the marriage. A team of experts, including mental health professionals, financial neutrals, and parenting coordinators, helps the parties resolve conflicts and settle property, support, and custody disputes. For divorcing couples, the collaborative process promises emotional healing and avoidance of contentious litigation. Advocates for collaborative divorce describe the transformational effects of the process in an evangelical tone. But collaborative divorce has costs. Collaboration can include considerations of marital fault that feminists helped eliminate from divorce laws. By focusing on conflict resolution, even for the purpose of building post-divorce relationships, collaborative negotiations introduce judgments of “good” and “bad” marital conduct, potentially reinforcing stereotyped gender roles, such as the blameless wife and the guilty husband. These heteronormative paradigms are out of date: gender roles have evolved, the population of married people has changed, and marriage rights have extended to couples of the same sex. Collaborative processes also have distributive consequences. Collaboration privileges wealthy parties who may understate their bargaining power. At the same time, collaboration may not reach vulnerable spouses who could benefit from therapeutic interventions. Collaborative divorce can be blind to situational power and structural inequality. The purpose of these critiques is not to undermine therapeutic approaches or to argue that law should ignore spousal misconduct. Rather, this Article suggests that advocates for collaborative divorce—including some feminist scholars who have theorized the shortcomings of no-fault divorce laws—might understand better how parties negotiate, and what they may sacrifice, within a collaborative framework