Why Most Divorce Filers Are Women 131 simply mean that alternatives to one's specific marriage are poor com- pared to the value of that specific marriage.For example,although the current relationship may be poor,the alternative may be extreme poverty or complete uprooting of a child,which is simply unacceptable to the given spouse.Alternatively,the relationship may be in a bad state now, but the spouse may feel that things will improve in the future.Those earn- ing large rents want to maintain the existing relationship and are therefore willing to sacrifice to do so.In fact,if they sacrifice up to the amount of the quasi-rent,they are still better off in the current relationship than the alternative.Herein lies the problem with quasi-rents:An exploitative spouse can extract value from the spouse earning quasi-rents because that person would rather give them up than leave.8 It should be noted that divorce itself is costly and still carries some stigma.Divorce contains costs in the form of attorneys'fees,harm to children,financial losses,and even today the loss of the comfort of being married.As a result,the divorce event (or process)provides a hurdle that encourages people to remain married even though the union is marginal at best.The marriages that eventuate in divorce are therefore those in which at least one individual believes life is better after divorce in spite of these costs. Quasi-rents in marriage often arise from the outset (Wax,1998)and take on two specific forms that are manifested in at least two particular types of divorces.First,quasi-rents may be appropriated within a marriage through renegotiation of marriage shares (exploitation).Second,the quasi- rents may be appropriated through divorce (appropriation).We examine each of these in turn and focus on the cases that are consistent with higher filing rates for wives. 2.1.Rent Exploitation During Marriage Higher filing rates by wives may result from husbands'overexploiting quasi-rents accruing to the wives as they bargain ex post over the share of marital gains.If the share is tipped too much in favor of the husband, 8.Quasi-rents have little to do with whether a marriage is"happy"or not.A happy marriage may have no quasi-rents.Suppose Sam could marry Sally or Judy,either of whom would make a perfect match.If Sam chooses Sally,he's happy,but earns no rents since Judy is a perfect substitute.Second,an unhappy marriage may still earn quasi-rents.Marriage to one person may simply be the least bad option
Why Most Divorce Filers Are Women 131 simply mean that alternatives to one’s specific marriage are poor compared to the value of that specific marriage. For example, although the current relationship may be poor, the alternative may be extreme poverty or complete uprooting of a child, which is simply unacceptable to the given spouse. Alternatively, the relationship may be in a bad state now, but the spouse may feel that things will improve in the future. Those earning large rents want to maintain the existing relationship and are therefore willing to sacrifice to do so. In fact, if they sacrifice up to the amount of the quasi-rent, they are still better off in the current relationship than the alternative. Herein lies the problem with quasi-rents: An exploitative spouse can extract value from the spouse earning quasi-rents because that person would rather give them up than leave.8 It should be noted that divorce itself is costly and still carries some stigma. Divorce contains costs in the form of attorneys’ fees, harm to children, financial losses, and even today the loss of the comfort of being married. As a result, the divorce event (or process) provides a hurdle that encourages people to remain married even though the union is marginal at best. The marriages that eventuate in divorce are therefore those in which at least one individual believes life is better after divorce in spite of these costs. Quasi-rents in marriage often arise from the outset (Wax, 1998) and take on two specific forms that are manifested in at least two particular types of divorces. First, quasi-rents may be appropriated within a marriage through renegotiation of marriage shares (exploitation). Second, the quasirents may be appropriated through divorce (appropriation). We examine each of these in turn and focus on the cases that are consistent with higher filing rates for wives. 2.1. Rent Exploitation During Marriage Higher filing rates by wives may result from husbands’ overexploiting quasi-rents accruing to the wives as they bargain ex post over the share of marital gains. If the share is tipped too much in favor of the husband, 8. Quasi-rents have little to do with whether a marriage is “happy” or not. A happy marriage may have no quasi-rents. Suppose Sam could marry Sally or Judy, either of whom would make a perfect match. If Sam chooses Sally, he’s happy, but earns no rents since Judy is a perfect substitute. Second, an unhappy marriage may still earn quasi-rents. Marriage to one person may simply be the least bad option
132 American Law and Economics Review V2 NI 2000(126-169) then the wife may perceive the divorced state as better because life in their marriage is so hard (Kurz,1995).Marriage is a relationship in which both spouses are residual claimants and neither spouse "hires"the other.Al- though most couples might marry with the intention that things will gen- erally be split evenly,the inputs and outputs are different and "lumpy," or unevenly distributed,so that perfectly delineated sharing is impossible However,the spouse with better opportunities outside the marriage can often tilt the general share of outputs more in his favor and the share of inputs more to the other partner.The forms these alterations can take are endless.Husbands may reduce or cease housework,forcing the wives to sacrifice too much of their leisure time to complete this work(Hochschild and Machung,1989;Parkman,1998),or they may neglect parenting du- ties,increase their private consumption at the expense of family goods, and spend more time with friends than with the family.A spouse may blatantly commit adultery or other traditional faults,and in the extreme, this form of exploitation may evolve into an abusive situation in which the husband takes advantage of the wife's worse position through actual or threatened force. Wives may find themselves in this position more often than husbands because they often make large specific investments when they have chil- dren,and wives typically bear a disproportionate cost in rearing children. Not only do children require time and effort,but also the physical changes of childbearing,childbirth,and the sleepless nights of child rearing can take a mental toll (lowering outside marriage opportunities).Because the baby is completely dependent upon the mother,she loses bargaining power relative to her husband because she can no longer devote "ideal worker" days to the paid labor force (Menkel-Meadow,1989,pp.304-12;Sanger, 1992,p.18;Silbaugh,1996;Williams,1991,pp.1611-12).The differ- ence between what a caregiving parent and a supporting parent earn makes up the bulk of the so-called gender gap in wages (Fuchs,1988,p.72; Jacobsen and Levin,1995).Thus Amy Wax and others argue that the 9.Fuchs concludes that women's disproportionate responsibility for childcare pro- vides the most powerful explanation of the difference in men and women's earnings. Although the gap between men and women's wages closed by 7%between 1980 and 1986,Fuchs (1988,pp.65-66)explains that the improvement largely was due to the increased percentage of women workers who were born after 1946 and had fewer chil- dren,suggesting that for each year out of the labor force,the caretaker permanently loses 1.5%of lifetime earning capacity (Hadfield,1993;Waite,1995,p.496)
132 American Lawand Economics ReviewV2 N1 2000 (126–169) then the wife may perceive the divorced state as better because life in their marriage is so hard (Kurz, 1995). Marriage is a relationship in which both spouses are residual claimants and neither spouse “hires” the other. Although most couples might marry with the intention that things will generally be split evenly, the inputs and outputs are different and “lumpy,” or unevenly distributed, so that perfectly delineated sharing is impossible. However, the spouse with better opportunities outside the marriage can often tilt the general share of outputs more in his favor and the share of inputs more to the other partner. The forms these alterations can take are endless. Husbands may reduce or cease housework, forcing the wives to sacrifice too much of their leisure time to complete this work (Hochschild and Machung, 1989; Parkman, 1998), or they may neglect parenting duties, increase their private consumption at the expense of family goods, and spend more time with friends than with the family. A spouse may blatantly commit adultery or other traditional faults, and in the extreme, this form of exploitation may evolve into an abusive situation in which the husband takes advantage of the wife’s worse position through actual or threatened force. Wives may find themselves in this position more often than husbands because they often make large specific investments when they have children, and wives typically bear a disproportionate cost in rearing children. Not only do children require time and effort, but also the physical changes of childbearing, childbirth, and the sleepless nights of child rearing can take a mental toll (lowering outside marriage opportunities). Because the baby is completely dependent upon the mother, she loses bargaining power relative to her husband because she can no longer devote “ideal worker” days to the paid labor force (Menkel-Meadow, 1989, pp. 304–12; Sanger, 1992, p. 18; Silbaugh, 1996; Williams, 1991, pp. 1611–12). The difference between what a caregiving parent and a supporting parent earn makes up the bulk of the so-called gender gap in wages (Fuchs, 1988, p. 72; Jacobsen and Levin, 1995).9 Thus Amy Wax and others argue that the 9. Fuchs concludes that women’s disproportionate responsibility for childcare provides the most powerful explanation of the difference in men and women’s earnings. Although the gap between men and women’s wages closed by 7% between 1980 and 1986, Fuchs (1988, pp. 65–66) explains that the improvement largely was due to the increased percentage of women workers who were born after 1946 and had fewer children, suggesting that for each year out of the labor force, the caretaker permanently loses 1.5% of lifetime earning capacity (Hadfield, 1993; Waite, 1995, p. 496)
Why Most Divorce Filers Are Women 133 labor market and the power derived from it cast a shadow over bargaining within the marriage (Wax,1998).10 The introduction of children into a marriage nearly always leads to some renegotiation of marital roles.Couples may or may not anticipate this,but when children arrive,a husband may try to renegotiate the mar- riage deal in light of the poorer bargaining position now held by the wife (Cohen,1987;Fineman,1995a;Stark,1991).When he does so,the wife may decide that a divorce is better than remaining married.Divorce,de- spite its many shortcomings,allows the woman to exercise control over household spending when she is awarded custody (Seltzer,1996,1998; Lundberg and Pollack,1993,pp.989-90).If the court names her primary custodian,she makes most,if not all,of the major decisions regarding the child (American Law Institute,1998,203[5]).As custodial parent,she will be able to spend the money the husband pays in child support exactly as she pleases-something she may not do during marriage (Lundberg and Pollack,1993,pp.992-93).12 Finally,although the court will usually have ordered visitation,she can exert some control over her former hus- band by regulating many,although not all,aspects of the time he spends with the child (Eichelberger v.Eichelberger,1986;American Law Insti- tute,1998,$2.20,Reporter's Notes,pp.377-89;Levmore,1998).In the extreme,she can even "poison"the child against the father(Fay,1989; Lobsenz,1971). The argument that wives file for divorce to escape bad marriages may hinge on a"mistake"made by the husband.In at least some cases,had he not exploited the good will of his wife too much,she might be unhappy but willing to stay in the marriage.Alternatively,once she had decided to leave,the husband could ease up on his demands at home and settle on 10.Regan (1992,pp.65-66)suggests a variety of women why women continue to earn significantly less than men of comparable education and training.See also Starnes (1993). 11.Wallerstein and Blakeslee(1995,pp.70-73)discuss how these changes in family structure influence marriages. 12.Of course,the non-resident parent may not always pay the support ordered (Brinig and Buckley,1998a,pp.420-23;Lerman,1989,p.222;Pulkingham,1994, pp.73-97)
Why Most Divorce Filers Are Women 133 labor market and the power derived from it cast a shadow over bargaining within the marriage (Wax, 1998).10 The introduction of children into a marriage nearly always leads to some renegotiation of marital roles.11 Couples may or may not anticipate this, but when children arrive, a husband may try to renegotiate the marriage deal in light of the poorer bargaining position nowheld by the wife (Cohen, 1987; Fineman, 1995a; Stark, 1991). When he does so, the wife may decide that a divorce is better than remaining married. Divorce, despite its many shortcomings, allows the woman to exercise control over household spending when she is awarded custody (Seltzer, 1996, 1998; Lundberg and Pollack, 1993, pp. 989–90). If the court names her primary custodian, she makes most, if not all, of the major decisions regarding the child (American LawInstitute, 1998, § 203[5]). As custodial parent, she will be able to spend the money the husband pays in child support exactly as she pleases—something she may not do during marriage (Lundberg and Pollack, 1993, pp. 992–93).12 Finally, although the court will usually have ordered visitation, she can exert some control over her former husband by regulating many, although not all, aspects of the time he spends with the child (Eichelberger v. Eichelberger, 1986; American LawInstitute, 1998, § 2.20, Reporter’s Notes, pp. 377–89; Levmore, 1998). In the extreme, she can even “poison” the child against the father (Fay, 1989; Lobsenz, 1971). The argument that wives file for divorce to escape bad marriages may hinge on a “mistake” made by the husband. In at least some cases, had he not exploited the good will of his wife too much, she might be unhappy but willing to stay in the marriage. Alternatively, once she had decided to leave, the husband could ease up on his demands at home and settle on 10. Regan (1992, pp. 65–66) suggests a variety of women why women continue to earn significantly less than men of comparable education and training. See also Starnes (1993). 11. Wallerstein and Blakeslee (1995, pp. 70–73) discuss howthese changes in family structure influence marriages. 12. Of course, the non-resident parent may not always pay the support ordered (Brinig and Buckley, 1998a, pp. 420–23; Lerman, 1989, p. 222; Pulkingham, 1994, pp. 73–97)
134 American Law and Economics Review V2 NI 2000(126-169) an arrangement that would,again,convince his wife to stay.Why,then, is the husband either unable or not willing to persuade his wife to stay?13 In some cases,by the time he realizes there's a problem,it is likely too late.So much of the wife's trust has eroded that no amount of renegoti- ating will save the marriage.In other cases,the breakup may be caused by a large asymmetry in the value placed on children by the mother and father.This may be for any number of reasons.Those commonly given include assumptions that women may be socially (Chodorow,1978,p.7; Rich,1986;Sanger,1996)or even genetically (Rossi,1977)predisposed to be more nurturing than men (Bartlett,1988;Fineman,1995b,pp.72- 73).14 She may also have spent so much more time with the children that she has become more attached,the same way that a person may acquire an ever greater taste in classical music (Becker,1993,p.400;Becker and Murphy,1988). For example,consider the presumably rare case where a nurturing woman marries a man with few paternal interests beyond being a bio- logical father.As the wife's stake in the marriage increases due to moth- erhood,this husband may exploit the situation to the fullest.If the wife decides to file for divorce to gain more control over household resources, the husband may be unwilling to modify his behavior because in his eyes he will have achieved his goal of being a father(Mullen v.Mullen,1948) Failure to renegotiate results from a fundamental difference in the value each spouse puts on his or her respective parental role. An extension of this argument is found where the husband goes so far in exploiting the quasi-rents of his wife that he explicitly violates the mar- riage vows or state laws.Wives,of course,may also break the marriage contract.Regardless of who breaches,committing adultery,physical and mental abuse,15 and desertion are all cases where bargaining to renegotiate 13.This "Coasian bargaining"(Coase,1960)is what economists would expect in a situation where the husband's gains from marriage were so great that he could com- pensate the wife for her desire to leave (Kelman,1979,p.688 and note 51). 14.Leving (1997)and Czapanskiy (1991)disagree. 15.We are confining this point to situations in which the wife has decided to per- manently leave the abusive relationship.Obviously many abused wives do reconcile with their husbands,and some never leave
134 American Lawand Economics ReviewV2 N1 2000 (126–169) an arrangement that would, again, convince his wife to stay. Why, then, is the husband either unable or not willing to persuade his wife to stay?13 In some cases, by the time he realizes there’s a problem, it is likely too late. So much of the wife’s trust has eroded that no amount of renegotiating will save the marriage. In other cases, the breakup may be caused by a large asymmetry in the value placed on children by the mother and father. This may be for any number of reasons. Those commonly given include assumptions that women may be socially (Chodorow, 1978, p. 7; Rich, 1986; Sanger, 1996) or even genetically (Rossi, 1977) predisposed to be more nurturing than men (Bartlett, 1988; Fineman, 1995b, pp. 72– 73).14 She may also have spent so much more time with the children that she has become more attached, the same way that a person may acquire an ever greater taste in classical music (Becker, 1993, p. 400; Becker and Murphy, 1988). For example, consider the presumably rare case where a nurturing woman marries a man with few paternal interests beyond being a biological father. As the wife’s stake in the marriage increases due to motherhood, this husband may exploit the situation to the fullest. If the wife decides to file for divorce to gain more control over household resources, the husband may be unwilling to modify his behavior because in his eyes he will have achieved his goal of being a father (Mullen v. Mullen, 1948). Failure to renegotiate results from a fundamental difference in the value each spouse puts on his or her respective parental role. An extension of this argument is found where the husband goes so far in exploiting the quasi-rents of his wife that he explicitly violates the marriage vows or state laws. Wives, of course, may also break the marriage contract. Regardless of who breaches, committing adultery, physical and mental abuse,15 and desertion are all cases where bargaining to renegotiate 13. This “Coasian bargaining” (Coase, 1960) is what economists would expect in a situation where the husband’s gains from marriage were so great that he could compensate the wife for her desire to leave (Kelman, 1979, p. 688 and note 51). 14. Leving (1997) and Czapanskiy (1991) disagree. 15. We are confining this point to situations in which the wife has decided to permanently leave the abusive relationship. Obviously many abused wives do reconcile with their husbands, and some never leave
Why Most Divorce Filers Are Women 135 the marriage is not very likely to succeed over the long run,because mu- tual trust and respect may be destroyed (Gaughan,1981;Lerman,1984).16 2.2.Rent Appropriation Through Divorce A second means by which quasi-rents may lead to divorce is through the outright confiscation of a specific investment in the marriage.As we noted earlier,quasi-rents,or large differences in the value of the marriage versus the next best alternative,often arise after one spouse has made a specific investment in the marriage;say,by helping the other earn a degree. When the other partner controls this investment,he or she may be able to leave the marriage and take the investment along (Weitzman,1985, p.109).This is particularly true when the investment is in the human capital of the spouse who leaves,as is often the case with education (Brinig,1997;Mahoney v.Mahoney,1982;Parkman,1995;Weitzman, 1985,p.141).17 Possibilities for appropriating marital assets also arise when there are large differences in the timing of investments in the marriage.For exam- ple,in a traditional marriage where the wife makes most of her (human) capital investments in the marriage up front,as she "takes time off"from a career to bear children,the husband is able to enjoy most of these in- vestments and then to leave just when his major contributions are about to begin (O'Brien v.O'Brien,1985;but see,e.g.,Graham v.Graham,1987; Cohen,1987). This opportunistic appropriation of quasi-rents (or making off with marital assets)through divorce has the opposite implications from the first type of problem mentioned.With rent extraction during marriage,the spouse who has been exploited during the marriage should be the one who files.With rent appropriation through divorce,the spouse who can 16.Of course,even in such cases,many spouses do reconcile,some of them per- manently.In order to avoid scandal,some adulterous spouses may cede tremendous amounts of marital power.In an unfortunately large number of abuse cases,although renegotiation is promised and marital relations resume,the power imbalance remains the same,and abuse recurs.Although historically desertion would have been the typ- ical occasion for women's filing,contemporary wives would seem particularly likely to file more often than their husbands in abuse cases (Kurz,1995).Fagan and Browne (1994)recently calculated the percentage of family violence in which women were the victims. 17.The classic case of this type is the "medical school syndrome,"where a fresh doctor leaves a supporting spouse once medical school is finished
Why Most Divorce Filers Are Women 135 the marriage is not very likely to succeed over the long run, because mutual trust and respect may be destroyed (Gaughan, 1981; Lerman, 1984).16 2.2. Rent Appropriation Through Divorce A second means by which quasi-rents may lead to divorce is through the outright confiscation of a specific investment in the marriage. As we noted earlier, quasi-rents, or large differences in the value of the marriage versus the next best alternative, often arise after one spouse has made a specific investment in the marriage; say, by helping the other earn a degree. When the other partner controls this investment, he or she may be able to leave the marriage and take the investment along (Weitzman, 1985, p. 109). This is particularly true when the investment is in the human capital of the spouse who leaves, as is often the case with education (Brinig, 1997; Mahoney v. Mahoney, 1982; Parkman, 1995; Weitzman, 1985, p. 141).17 Possibilities for appropriating marital assets also arise when there are large differences in the timing of investments in the marriage. For example, in a traditional marriage where the wife makes most of her (human) capital investments in the marriage up front, as she “takes time off” from a career to bear children, the husband is able to enjoy most of these investments and then to leave just when his major contributions are about to begin (O’Brien v. O’Brien, 1985; but see, e.g., Graham v. Graham, 1987; Cohen, 1987). This opportunistic appropriation of quasi-rents (or making off with marital assets) through divorce has the opposite implications from the first type of problem mentioned. With rent extraction during marriage, the spouse who has been exploited during the marriage should be the one who files. With rent appropriation through divorce, the spouse who can 16. Of course, even in such cases, many spouses do reconcile, some of them permanently. In order to avoid scandal, some adulterous spouses may cede tremendous amounts of marital power. In an unfortunately large number of abuse cases, although renegotiation is promised and marital relations resume, the power imbalance remains the same, and abuse recurs. Although historically desertion would have been the typical occasion for women’s filing, contemporary wives would seem particularly likely to file more often than their husbands in abuse cases (Kurz, 1995). Fagan and Browne (1994) recently calculated the percentage of family violence in which women were the victims. 17. The classic case of this type is the “medical school syndrome,” where a fresh doctor leaves a supporting spouse once medical school is finished