Rational Decisionmaking about Marriage and Divorce

The apparent normative goal of modem divorce law is the efficient termination of unsuccessful marriages. Once the couple (or either party) determine that the marriage is no longer satisfactory, then quick and easy exit is deemed desirable. As Carl Schneider suggests, the law has withdrawn from moral discourse about divorce, adopting a neutral stance toward marital dissolution. Although divorce typically imposes formidable psychological and economic costs, there are few legal incentives to remain married, or even to consider thoughtfully the decision to end the marriage. Moreover, although decisions about marriage and divorce have important legal implications, the law does nothing to prevent or deter hasty or ill-informed choices by couples entering marriage. The current stance of the law is understandable in its historical context. Divorce law of a generation ago conflicted with prevailing social norms and was frequently evaded or ignored. The movement from legal rules based on fault to breakdown grounds for divorce reflected a modem conception of marital dissolution. More precisely, it signaled a changed conception of marriage. Marriage is no longer a relationship reinforced by religious, moral, and legal restraints. Indeed, contemporary marriage has been aptly described as a nonbinding commitment, a relationship that may begin with optimistic hopes that it will endure, but that survives only as long as each spouse\u27s needs are met. This conception of marriage and divorce, although apparently offering enhanced personal freedom, has seemed unsatisfactory to many observers. Some perceive the high divorce rate as symptomatic of deep societal dysfunction. Social critics have described with alarm the culture of narcissism in our society, characterized by self-gratification and the absence of commitment. Several legal scholars have suggested that the rhetoric of family law Should emphasize relationship and responsibility and speak less in the language of individual rights

Diverging family structure and “rational” behavior: The decline in marriage as a disorder of choice

The past fifty years have witnessed a growing divergence in family structure by social class, income, education, and race. The goal is to explain why significant segments of the population are moving away from the traditional patterns of family and reproduction. Most demographers acknowledge that external and material constraints fail to account for most of the present dispersion by class and race in marriage, divorce, and patterns of childbearing. Nor do these factors explain the widening of disparities over time. In attempting to improve on prior theories, this paper proposes a different explanation for these developments. It argues that demographic trends can best be explained as the product of growing differences in styles of thinking about partner choice and reproductive behavior. Drawing on the work of psychologists Richard Herrnstein and Gene Heyman, the paper presents a model that contrasts two distinct types of “rational” choice: “global” and “local.” It then demonstrates that average disparities by race and class in the adoption of local or global decisionmaking methods can account for the significant demographic variations now observed in rates of marriage, divorce, and out of wedlock childbearing. The paper then suggests that this diversity emerged in the wake of the normative deregulation of the sexual revolution. The demise of strong heuristic mores and institutional constraints, and the rise of individualism, facilitated the development of contrasting decisionmaking styles in intimate relations

The Empirical Turn In Family Law

Historically, the legal system justified family law’s rules and policies through morality, common sense, and prevailing cultural norms. In a sharp departure, and consistent with a broader trend across the legal system, empirical evidence increasingly dominates the regulation of families. There is much to celebrate in this empirical turn. Properly used, empirical evidence in family law can help the state act more effectively and efficiently, unmask prejudice, and depoliticize contentious battles. But the empirical turn also presents substantial concerns. Beyond perennial issues of the quality of empirical evidence and the ability of legal actors to use it, there are more fundamental problems: Using empirical evidence focuses attention on the outcomes of legal rules, discouraging a debate about contested and competing values. Reliance on empirical evidence overlays a veneer of neutrality on normative judgments. And uncritically adopting evidence about present conditions without interrogating the role of historical discrimination that continues to disadvantage some families can replicate that discrimination. Given the promise and peril of the empirical turn in family law, this Essay proposes a framework to guide the use of this evidence. The framework preserves space for debating multiple values and advises decisionmakers when to use empirical evidence, with particular attention to the dangers for nondominant families. The framework also recommends strengthening evidentiary gatekeeping and elevating the potential for legal scholarship to serve as a bridge from the broader research base to the courts. With this guidance in place, empirical evidence can take its rightful place as a useful but cabined tool in the legal regulation of families

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

Eliminating Consideration of Parental Wealth in Post-Divorce Child Custody Disputes

There may be no story as old as that of the child of privilege, spoiled in the things of the world, who finally achieves happiness through coming to appreciate the simple charms of working-class life. But equal in strength are the real life stories of American parents: their drive for the accumulation of personal wealth, so frequently justified as for the children. The place of wealth in the good life of a child is deeply controversial, and it should surprise no one to see it played out in child custody law. Under the statutes of almost all states, custody disputes between divorcing parents must be decided in the best interests of the child. These statutes often list particular factors that are to be considered when deciding children\u27s interests, such as [t]he love, affection, and other emotional ties existing between the parties involved and the child. Some statutes also expressly forbid consideration of particular factors, such as the gender of the parent. Even with these attempts to narrow the inquiry, the best-interests standard remains notably vague. This inevitably leads to serious disputes about which factors ought to be considered, and how much weight they should be given. Perhaps the most troubling of these disputes has involved the relevance to the custody decision of each parent\u27s ability to provide the child with material goods

A Need for Caring

Review of AIDS AND THE LAW: A GUIDE FOR THE PUBLIC. Edited by Harlon L. Dalton, Scott Burris, and the Yale AIDS Law Project. New Haven: Yale University Press. 1987. Pp. vii, 382

The Age of Marital Capacity: Reconsidering Civil Recognition of Adolescent Marriage

Age at marriage has for decades been the strongest and most unequivocal predictor of marital failure. The likelihood of divorce nears eighty percent for those who marry in mid-adolescence, then drops steadily. Delaying marriage until the mid-twenties reduces one’s likelihood of divorce to thirty percent. Women who marry at age twenty-one or younger, moreover – and one in ten U.S. women do – experience worse mental and physical health, attain less education, and earn lower wages than those who marry later. Post-divorce, they and their children tend to endure even greater economic deprivation and instability than do never-married mothers, who will frequently have invested more in market work and education. While the social cost of early marriage is significant, U.S. policy disregards the hundreds of thousands of young people currently married or divorced, as well as those who may be contemplating early marriage. A comprehensive analysis of early marriage and its regulation is overdue, and this Article undertakes that task. The Article argues that a historic confluence of cultural and structural changes has simultaneously transformed the social function and meaning of modern marriage and prolonged the course of development to adulthood. It advances a new conception of “marital capacity” to supplant the current legal concept of consent, which is inadequate in the context of marriage. This new conception recognizes adolescents’ and emerging adults’ cognitive abilities to understand and voluntarily consent to marriage, but also accounts for their psychosocial immaturity and incomplete acquisition of other abilities required to sustain modern marriage. The median age at first marriage is rising, reflecting gradual social adaptation to these cultural and structural changes. Legal adaptation, however, has lagged. Even though law is only one of the structural influences on family formation, legal change bringing the marital age in line with the modern social institution will go far to alleviate the strain on individuals and cost to society imposed by early marriage

Using gender research in development: food security in practice

Gender, Development, Research, food security, Household surveys, Food policy, Intrahousehold issues, Decision-making, Research projects, Practitioners, Project management, Women in development, Food supply, Economic development projects,