"These Boots Are Made for Walking": Why Most Divorce Filers Are Women Margaret F.Brinig,College of Law,University of lowa,and Douglas W.Allen,Department of Economics,Simon Fraser University Because of the financial and social hardship faced after divorce,most people assume that generally husbands have instigated divorce since the introduction of no-fault divorce.Yet women file for divorce and are often the instigators of separation,de- spite a deep attachment to their children and the evidence that many divorces harm children.Furthermore,divorced women in large numbers reveal that they are hap- pier than they were while married.They report relief and certainty that they were right in leaving their marriages.This fundamental puzzle suggests that the incen- tives to divorce require a reexamination,and that the forces affecting the net benefits from marriage may be quite complicated,and perhaps asymmetric between men and women.This paper considers women's filing as rational behavior,based on spouses' relative power in the marriage,their opportunities following divorce,and their antic- ipation of custody. You've been messing where you shouldn't have been messing,and someone else is getting all your best....These boots are made for walking,and that's just what they'll do.One of these days these boots are going to walk all over you. -Nancy Sinatra 1.Introduction Throughout most of American history,wives rather than husbands have filed for divorce.The proportion of wife-filed cases has ranged Send correspondence to:Margaret F.Brinig.College of Law,University of lowa, Boyd Law Building,Iowa City,IA 52242;Fax:(319)335-9098;E-mail:margaret- brinig@uiowa.edu. 2000 American Law and Economics Association 126
“These Boots Are Made for Walking”: Why Most Divorce Filers Are Women Margaret F. Brinig, College of Law, University of Iowa, and Douglas W. Allen, Department of Economics, Simon Fraser University Because of the financial and social hardship faced after divorce, most people assume that generally husbands have instigated divorce since the introduction of no-fault divorce. Yet women file for divorce and are often the instigators of separation, despite a deep attachment to their children and the evidence that many divorces harm children. Furthermore, divorced women in large numbers reveal that they are happier than they were while married. They report relief and certainty that they were right in leaving their marriages. This fundamental puzzle suggests that the incentives to divorce require a reexamination, and that the forces affecting the net benefits from marriage may be quite complicated, and perhaps asymmetric between men and women. This paper considers women’s filing as rational behavior, based on spouses’ relative power in the marriage, their opportunities following divorce, and their anticipation of custody. You’ve been messing where you shouldn’t have been messing, and someone else is getting all your best. ... These boots are made for walking, and that’s just what they’ll do. One of these days these boots are going to walk all over you. —Nancy Sinatra 1. Introduction Throughout most of American history, wives rather than husbands have filed for divorce. The proportion of wife-filed cases has ranged Send correspondence to: Margaret F. Brinig, College of Law, University of Iowa, Boyd LawBuilding, Iowa City, IA 52242; Fax: (319) 335-9098; E-mail: margaretbrinig@uiowa.edu. ©2000 American Lawand Economics Association 126
Why Most Divorce Filers Are Women 127 from around 60%for most of the 19th century (Chused,1994;Fried- man and Percival,1976)to,immediately after the introduction of no- fault divorce (Gunter and Johnson,1978),more than 70%in some states (Gunter and Johnson,1978,p.572 and Table 1;Friedman and Percival, 1976,pp.71,75,81).Today,with some variation among states,it re- mains slightly above two-thirds.The standard explanations for this behav- ior include the following:women file because of tradition (Brinig,1993; Brinig and Buckley,1998b);women file to assure their innocence in the underlying proceeding;-women file to secure rights to custody,support, and attorney's fees(Friedman and Percival,1976,p.78;Brinig and Buck- ley,1998b;Vernier and Hurlbut,1939,p.198);or women file simply because it is more convenient for them to do so.While these explana- tions have some merit,even in combination they cannot explain the vari- ation in filing rates across states (Table 1),the persistence of the "gender gap"in filing through time,nor the systematic filing behavior we explore later on. Economic explanations of divorce,beginning with Gary Becker,stress the rational weighing of remaining married over becoming single.When remaining married is no longer attractive,a spouse files for divorce,and on the surface it is unclear why the bias should be toward women filing.3 What makes the high filing rate for women most puzzling,however,is that it is generally assumed that overall husbands should be the ones most wanting out of marriage-particularly since the introduction of no-fault divorce.This understanding results from the focus on post-divorce finan- cial status.Even by the most conservative accounts,the average divorced woman's standard of living declines from the one she enjoyed during marriage,and it declines relatively more than does the average husband's. Men often have an increase in their material well-being after divorce (Duncan and Hoffman,1985;Finnie,1993;Hill and O'Neill,1994; 1.Nadine Taub has noted that many of these petitions may be attributable to the chivalrous custom of allowing the wife to file first(Stark,1991,p.1514.note 149). 2.Reid v.Reid (1989)and McLaughlin v.McLaughlin (1986)discuss the standard requiring justification before the wife's desertion barred her from obtaining alimony under a now-amended law (Friedman and Percival,1976,p.79). 3.Although we recognize that filing for divorce is not the same as instigating a divorce,for many of the hypotheses we consider,this assumption will be made for reasons we will discuss shortly.We will include some evidence that the two are related, if not identical,when we discuss the Oregon data on long-term separations
Why Most Divorce Filers Are Women 127 from around 60% for most of the 19th century (Chused, 1994; Friedman and Percival, 1976) to, immediately after the introduction of nofault divorce (Gunter and Johnson, 1978), more than 70% in some states (Gunter and Johnson, 1978, p. 572 and Table 1; Friedman and Percival, 1976, pp. 71, 75, 81). Today, with some variation among states, it remains slightly above two-thirds. The standard explanations for this behavior include the following: women file because of tradition (Brinig, 1993; Brinig and Buckley, 1998b);1 women file to assure their innocence in the underlying proceeding;2 women file to secure rights to custody, support, and attorney’s fees (Friedman and Percival, 1976, p. 78; Brinig and Buckley, 1998b; Vernier and Hurlbut, 1939, p. 198); or women file simply because it is more convenient for them to do so. While these explanations have some merit, even in combination they cannot explain the variation in filing rates across states (Table 1), the persistence of the “gender gap” in filing through time, nor the systematic filing behavior we explore later on. Economic explanations of divorce, beginning with Gary Becker, stress the rational weighing of remaining married over becoming single. When remaining married is no longer attractive, a spouse files for divorce, and on the surface it is unclear why the bias should be toward women filing.3 What makes the high filing rate for women most puzzling, however, is that it is generally assumed that overall husbands should be the ones most wanting out of marriage—particularly since the introduction of no-fault divorce. This understanding results from the focus on post-divorce financial status. Even by the most conservative accounts, the average divorced woman’s standard of living declines from the one she enjoyed during marriage, and it declines relatively more than does the average husband’s. Men often have an increase in their material well-being after divorce (Duncan and Hoffman, 1985; Finnie, 1993; Hill and O’Neill, 1994; 1. Nadine Taub has noted that many of these petitions may be attributable to the chivalrous custom of allowing the wife to file first (Stark, 1991, p. 1514, note 149). 2. Reid v. Reid (1989) and McLaughlin v. McLaughlin (1986) discuss the standard requiring justification before the wife’s desertion barred her from obtaining alimony under a now-amended law (Friedman and Percival, 1976, p. 79). 3. Although we recognize that filing for divorce is not the same as instigating a divorce, for many of the hypotheses we consider, this assumption will be made for reasons we will discuss shortly. We will include some evidence that the two are related, if not identical, when we discuss the Oregon data on long-term separations
128 American Law and Economics Review V2 N1 2000(126-169) Table 1.Historical Filing Rates for Women in the United States Locale and Year Percent Where Wife Plaintiff U.S.1867 2 U.S.1880 U.S,1890° 6 U.S,1900° U.S,1908* 67 U.S,1922 6 U.S.1931 72.8 U.S,1960 70.3 Dade County,Florida,1962-63" Fulton County,Georgia,1962-63* U.S,1965 71.4 California,1966 78.3 New Jersey.1966 68.1 Florida.1969 (Sample) 73.4 Polk County Iowa,1969 80.7 California,1970° 71.5 New Jersey,.1970° 70.2 Polk County,lowa,1972 78 Dade County,Florida,1972-73* 32 Fulton County,Georgia,1972-73* California,1974* 67.3 New Jersey.1974* 64.1 Florida,1974(Sample)* 71.5 Connecticut,1995 69.4 Connecticut,1995,with children 71.3 'Friedman and Percival,1976 "Gunter and Johnson.1978 McLanahan and Garfinkel,1989;McLanahan and Sandefer,1994,pp.86- 88;Peterson,1996;Smock,1994).Furthermore,women face longer terms of low wealth and consumption when they divorce because they are less likely to remarry than their former husbands (Cherlin,1992;Clarke,1995; Glick,1980).This lower remarriage rate is exacerbated when the wife has custody of the children.Part of the reason for this disparity is that a woman's value on the marriage market tends to depreciate with time, while her husband's tends to appreciate (Cohen,1995;Weitzman,1985, p.27).In addition to the other problems,newly divorced women en- counter tremendous obstacles performing their role as parents.4 Studies of 4.For example,they must assume flexible employment in order to accommodate their children's emergencies (Blau and Robins,1989)
128 American Lawand Economics ReviewV2 N1 2000 (126–169) Table 1. Historical Filing Rates for Women in the United States Locale and Year Percent Where Wife Plaintiff U.S., 1867∗ 62 U.S., 1880∗ 67 U.S., 1890∗ 66 U.S., 1900∗ 67 U.S., 1908∗ 67 U.S., 1922∗ 68 U.S., 1931∗ 72.8 U.S., 1960∗ 70.3 Dade County, Florida, 1962–63∗∗ 71 Fulton County, Georgia, 1962–63∗∗ 73 U.S., 1965 71.4 California, 1966 78.3 NewJersey, 1966 68.1 Florida, 1969 (Sample) 73.4 Polk County Iowa, 1969 80.7 California, 1970∗ 71.5 NewJersey, 1970∗ 70.2 Polk County, Iowa, 1972 78.3 Dade County, Florida, 1972–73∗∗ 32 Fulton County, Georgia, 1972–73∗∗ 70 California, 1974∗ 67.3 NewJersey, 1974∗ 64.1 Florida, 1974 (Sample)∗ 71.5 Connecticut, 1995 69.4 Connecticut, 1995, with children 71.3 *Friedman and Percival, 1976 **Gunter and Johnson, 1978 McLanahan and Garfinkel, 1989; McLanahan and Sandefer, 1994, pp. 86– 88; Peterson, 1996; Smock, 1994). Furthermore, women face longer terms of low wealth and consumption when they divorce because they are less likely to remarry than their former husbands (Cherlin, 1992; Clarke, 1995; Glick, 1980). This lower remarriage rate is exacerbated when the wife has custody of the children. Part of the reason for this disparity is that a woman’s value on the marriage market tends to depreciate with time, while her husband’s tends to appreciate (Cohen, 1995; Weitzman, 1985, p. 27). In addition to the other problems, newly divorced women encounter tremendous obstacles performing their role as parents.4 Studies of 4. For example, they must assume flexible employment in order to accommodate their children’s emergencies (Blau and Robins, 1989)
Why Most Divorce Filers Are Women 129 their performance as parents prior to and after divorce reveal weaknesses in consistency and ability to cope with the stress of single parenting(Heth- erington et al.,1982;Hochschild,1997;Wallerstein and Kelly,1980). Because of the financial and social hardships faced after divorce,it has been commonplace,in the law and economics world at any rate,to as- sume that husbands have at least instigated divorce (Parkman,1992,p.85; Cohen,1987,pp.288-89).This position has also been supported by the tidbit of information suggesting that male filing rates increased with the introduction of no-fault divorce (Gunter and Johnson,1978,pp.572-73). The standard view is that the increases in divorce rates brought about by no-fault divorce were the result of husbands unilaterally absconding with disproportionate shares of marital property(Cohen,1995;Weitzman, 1985;Zelder,1994).Yet women file for divorce more often than men.Not only do they file more often,but some evidence suggests they are more likely to instigate separation (Braver,Whitley,and Ng,1993),despite a deep attachment to their childrens and the evidence that many divorces harm children (Bianchi and McArthur,1991).Because the connection be- tween filing and initiation of breakup is important to our analysis,we reproduce a table of data taken from the National Survey of Families and Households(Sweet,Bumpass,and Call,1988)(See Appendix).6 Further- more,divorced women in large numbers reveal that they are happier than they were while married.?They report relief and certainty that they were right in leaving their marriages (Reissman,1990,p.165). 5.Women more than men seem to bear the burden of their children's suffering, holding themselves responsible for the children's emotional and physical well-being (Whitehead,1997,p.63;Fuchs,1988,p.72). 6.Later we will supplement this qualitative appraisal with a strictly empirical one, showing how filing that takes place immediately after separation (largely done by women)reveals much more about the reasons for divorce than does filing after lengthy separation. 7.This is not merely just what is reported;clinical studies show a lower preva- lence rate of first-onset major depression for women than for men (Baruch,Barnett, and Rivers,1983,p.261;Bruce and Kim,1992;Kurz,1995,pp.188-89;Verbrugge and Madans,1985;Whitehead,1997,p.184).Men tend to get more health,sexual, and economic (wage)benefits from marriage,regardless of the quality of the mar- riage,than do women (Waite,1995).For health benefits,see Schoenborn and Marano (1988).Women get some psychological benefits from marriage that they do not receive when single.However,divorced and separated women got higher marks for personal autonomy and sufficiency as well as personal growth (Marks,1996)
Why Most Divorce Filers Are Women 129 their performance as parents prior to and after divorce reveal weaknesses in consistency and ability to cope with the stress of single parenting (Hetherington et al., 1982; Hochschild, 1997; Wallerstein and Kelly, 1980). Because of the financial and social hardships faced after divorce, it has been commonplace, in the lawand economics world at any rate, to assume that husbands have at least instigated divorce (Parkman, 1992, p. 85; Cohen, 1987, pp. 288–89). This position has also been supported by the tidbit of information suggesting that male filing rates increased with the introduction of no-fault divorce (Gunter and Johnson, 1978, pp. 572–73). The standard viewis that the increases in divorce rates brought about by no-fault divorce were the result of husbands unilaterally absconding with disproportionate shares of marital property (Cohen, 1995; Weitzman, 1985; Zelder, 1994). Yet women file for divorce more often than men. Not only do they file more often, but some evidence suggests they are more likely to instigate separation (Braver, Whitley, and Ng, 1993), despite a deep attachment to their children5 and the evidence that many divorces harm children (Bianchi and McArthur, 1991). Because the connection between filing and initiation of breakup is important to our analysis, we reproduce a table of data taken from the National Survey of Families and Households (Sweet, Bumpass, and Call, 1988) (See Appendix).6 Furthermore, divorced women in large numbers reveal that they are happier than they were while married.7 They report relief and certainty that they were right in leaving their marriages (Reissman, 1990, p. 165). 5. Women more than men seem to bear the burden of their children’s suffering, holding themselves responsible for the children’s emotional and physical well-being (Whitehead, 1997, p. 63; Fuchs, 1988, p. 72). 6. Later we will supplement this qualitative appraisal with a strictly empirical one, showing how filing that takes place immediately after separation (largely done by women) reveals much more about the reasons for divorce than does filing after lengthy separation. 7. This is not merely just what is reported; clinical studies show a lower prevalence rate of first-onset major depression for women than for men (Baruch, Barnett, and Rivers, 1983, p. 261; Bruce and Kim, 1992; Kurz, 1995, pp. 188–89; Verbrugge and Madans, 1985; Whitehead, 1997, p. 184). Men tend to get more health, sexual, and economic (wage) benefits from marriage, regardless of the quality of the marriage, than do women (Waite, 1995). For health benefits, see Schoenborn and Marano (1988). Women get some psychological benefits from marriage that they do not receive when single. However, divorced and separated women got higher marks for personal autonomy and sufficiency as well as personal growth (Marks, 1996)
130 American Law and Economics Review V2 NI 2000(126-169) This fundamental puzzle(namely,that women on average willingly file for divorce despite higher costs)suggests that the incentives for divorce require a reexamination,that the forces affecting the net benefits from marriage may be quite complicated,and that these forces may be asym- metric between men and women.This paper considers women's filing as rational behavior,based on spouses'relative power in the marriage,their opportunities following divorce,and their anticipation of custody.An ex- amination of recent filing behavior across four states reveals that certain characteristics are excellent predictors of who files for divorce. 2.Theories of Filing The presence of what economists call appropriable quasi-rents has long been known to cause bargaining problems in relationships of all kinds (Buchanan,1983;Cohen,1987;Klein,Crawford,and Alchian,1978; Muris,1981).Because the concept of quasi-rents is so important to our analysis,we go to some lengths to explain what it means in the con- text of marriage and divorce.Formally,a quasi-rent is a value over and above one's opportunity cost or next best alternative.According to Klein, Crawford,and Alchian (1978,p.298),a quasi-rent "is the excess [of an asset's]value over its salvage value."In the case of marriage,a quasi-rent is excess value of a specific marriage over the value of the next best op- tion of not being in this specific marriage.This next best option may be remarriage,separation,or divorce,depending on the preferences and op- portunities of the individual spouse.Clearly,since quasi-rents depend on the value held by each spouse,each spouse has a different rent within the marriage.In many marriages,spouses may reap larger or smaller quasi- rents at different times.This is the situation explained by Lloyd Cohen in his "Marriage,Divorce and Quasi-Rents"(1987),where wives receive quasi-rents late in marriage and husbands early on. The economic importance of quasi-rents stems from the fact that they can potentially be held hostage or appropriated.To earn quasi-rents in any relationship often puts one in a weak bargaining position because the rela- tionship means more than any of the alternatives.This often strikes many as counterintuitive.If one earns large rents,how can this be a bad thing? Yet large rents stem from two sources,the value of the current relationship and the value of alternatives.In the context of marriage,large quasi-rents
130 American Lawand Economics ReviewV2 N1 2000 (126–169) This fundamental puzzle (namely, that women on average willingly file for divorce despite higher costs) suggests that the incentives for divorce require a reexamination, that the forces affecting the net benefits from marriage may be quite complicated, and that these forces may be asymmetric between men and women. This paper considers women’s filing as rational behavior, based on spouses’ relative power in the marriage, their opportunities following divorce, and their anticipation of custody. An examination of recent filing behavior across four states reveals that certain characteristics are excellent predictors of who files for divorce. 2. Theories of Filing The presence of what economists call appropriable quasi-rents has long been known to cause bargaining problems in relationships of all kinds (Buchanan, 1983; Cohen, 1987; Klein, Crawford, and Alchian, 1978; Muris, 1981). Because the concept of quasi-rents is so important to our analysis, we go to some lengths to explain what it means in the context of marriage and divorce. Formally, a quasi-rent is a value over and above one’s opportunity cost or next best alternative. According to Klein, Crawford, and Alchian (1978, p. 298), a quasi-rent “is the excess [of an asset’s] value over its salvage value.” In the case of marriage, a quasi-rent is excess value of a specific marriage over the value of the next best option of not being in this specific marriage. This next best option may be remarriage, separation, or divorce, depending on the preferences and opportunities of the individual spouse. Clearly, since quasi-rents depend on the value held by each spouse, each spouse has a different rent within the marriage. In many marriages, spouses may reap larger or smaller quasirents at different times. This is the situation explained by Lloyd Cohen in his “Marriage, Divorce and Quasi-Rents” (1987), where wives receive quasi-rents late in marriage and husbands early on. The economic importance of quasi-rents stems from the fact that they can potentially be held hostage or appropriated. To earn quasi-rents in any relationship often puts one in a weak bargaining position because the relationship means more than any of the alternatives. This often strikes many as counterintuitive. If one earns large rents, howcan this be a bad thing? Yet large rents stem from two sources, the value of the current relationship and the value of alternatives. In the context of marriage, large quasi-rents