《性别、亲密关系与社会》课程教学资源：“These Boots Are Made for Walking”：Why Most Divorce Filers Are Women

"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, 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 Iowa, Boyd LawBuilding, Iowa City, IA 52242; Fax: (319) 335-9098; E-mail: margaret￾brinig@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; 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);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 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

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 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)

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 (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 lawand 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 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 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.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 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)

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 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, 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

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 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

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. 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).9 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)

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 mar￾riage 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, 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 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 hus￾band by regulating many, although not all, aspects of the time he spends with the child (Eichelberger v. Eichelberger, 1986; American LawInsti￾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 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 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

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 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