With Justice for ALL (quote from the pledge of allegience U.S.A.)
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The Effects of No-Fault Divorce
Thirty years ago California adopted the first unequivocal no-fault divorce statute in the United States.(1) Over the following fifteen years, all the other states and the District of Columbia enacted similar statutes establishing "irretrievable breakdown" or "incompatibility" as the only grounds for divorce or adding these to the preexisting fault grounds.(2) The new provisions were viewed as a major, and desirable, reform of the statutes in effect through most of the history of the United States, under which a divorce, when permitted at all, could only be obtained on grounds such as adultery, cruelty, or desertion,(3) with the assumption that one of the spouses was responsible for the failure of the marriage. Many no-fault divorce statutes removed the consideration of marital fault from the grounds for divorce, the award of spousal support, and the division of property.
The Effects of No-Fault
The no-fault divorce laws have had dramatic and often unexpected effects on families dismantling a system that had been based essentially on mutual consent. This system had protected parties who had relied on their marriage continuing, but no-fault divorce reduced this protection and the resulting negotiating power of the spouse who did not want to dissolve the marriage,(4) frequently the wife.(5)
The loss of negotiating power has unfortunately reduced the incentive for spouses to make certain sacrifices that benefitted their family. Traditionally, these occurred when married women committed themselves to a career that accommodated that of their husband. More recently, the expansion in the employment opportunities for married women has increased the incentive for some fathers to assume primary responsibility for childcare.(6) In 20 to 25 percent of dual earner couples, wives earn more than their husbands.(7) Because these sacrifices are seldom the basis for compensation at divorce, both spouses have become reluctant to make them.
Today, families are worse off. While researchers only slowly became aware of the adverse effects of no-fault divorce, they eventually recognized that the new laws resulted in a decline in the welfare of divorced women and the children of divorced parents.(8) Lenore Weitzman reported, for example, that divorced women and their children experience a 73 percent decline in their standard of living during the first year after a divorce.(9) Elizabeth Peters showed that in 1979 women who were divorced in no-fault divorce states received less alimony and child support than in fault divorce states.(10)
Less obvious, but also substantial, has been the effect of no-fault divorce on families that stay married. The fault grounds for divorce had the effect of providing some protection against the potential costs of divorce for a spouse who chose to limit a career to emphasize work in the home. No-fault grounds for divorce have forced these people, usually wives, to seek other forms of protection. Reduced incentives for women to be housewives and mothers and increased incentives for them to work outside the home and seek additional education to maintain their human capital--their income-earning capacity--have often reduced the welfare of their families.
These are not the results expected by the proponents of no-fault divorce. Fault divorce was attacked by many reformers because of the hypocritical procedures used by many people to obtain a divorce.(11)
The fault divorce system was predicated on the belief that unless the breakdown
of a marriage could be attributed solely to the wrongdoing of a single, identifiable
spouse, divorce was not permitted. In most states, a divorce was not permitted
if both spouses were at fault. The procedures used under fault divorce encouraged
perjury and brought an adversarial process to situations often calling for conciliation.
Normally only the innocent spouse could ask for a divorce and a guilty spouse
who wanted a divorce found it very difficult to obtain a divorce without the
cooperation of the other spouse. Many men argued that the result was not the
protection of innocent wives but the requirement that husbands buy their way
out of marriage.(12) Some reformers felt that a reform of the divorce process
could reverse the trend toward higher divorce rates that had been observed during
most of this century.(13) In either case, the solution was obvious: remove the
fault grounds from the requirements for a divorce.
I will argue that the primary problem with the no-fault divorce laws has been the ignoring of many of the costs associated with divorce resulting in undesirable decisions being made during marriage and at divorce. Central among the ignored costs is the effect of marriage on the income-earning capacities of the spouses--their human capital. Both spouses have an income earning capacity at marriage. Usually, additional education or experience is necessary during marriage to enhance--or even maintain--the value of their human capitals. Frequently, spouses have elected to emphasize work in the home during marriage, thereby, limiting their opportunities to even maintain their human capital. If they eventually were to divorce, they usually will not receive substantial compensation for any reduction in their human capital that occurred during the marriage. Incorporating considerations of human capital into financial settlements under no-fault divorce would increase the welfare of families and society. Other costs of divorce to the spouses and children are more difficult to estimate and they may require a shift to mutual consent as the basis for divorce for established marriages. The failure to grapple with the adverse effects of no-fault divorce has resulted in numerous adverse effects on society: In the three decades since the introduction of no-fault divorce, we have probably seen more changes in the structure and stability of the U. S. family than in any other period in U. S. history.(14)
An Economic Perspective
Marriage and divorce have long been active areas for analysis and discussion by sociologists and lawyers,(15) but I believe the general absence of an economic perspective has obscured some problems. Economics is the study of choice:(16) the choices that people make, or rationally should make, in an environment in which the array of goods and activities that individuals want exceeds their resources of income and time. Other disciplines have started to use the economic perspective to assist them in analyzing the topics that they explore. Public choice theory is being used in political science and rational choice theory in sociology.(17) My analysis here includes an investigation of the reasons why no-fault divorce statutes were introduced and why they have had a detrimental effect on U. S. families with particular attention to the deterioration in the financial welfare of divorced women and children of divorced parents.
Economic analysis, based on society's preference for efficient outcomes, provides an alternate explanation to the moralistic one given for the introduction of no-fault divorce. We live in a world in which wants--financial and psychological--exceed the available resources. Choices have to be made. Efficient outcomes occur when choices are made for which the benefits exceed the costs. Efficient outcomes increase social welfare. As the benefits and costs of activities change, the efficient choices change. Economists view the decision to marry and, sometimes, to divorce as based on the benefits and the costs associated with those choices. Over time, the costs and benefits of marriage and divorce can change and then the incentives to marry and to stay married change. Economists have argued that changes that have occurred since World War II, such as the expanded employment opportunities for women, the availability of improved forms of contraception and the increase in labor saving devices for the home, have reduced both the benefit of marriage and the cost of divorce for some people.(18) Under those circumstances, we would expect to observe fewer marriages and more divorces. If the legal system conflicts with people's new preferences, especially for more flexible grounds for divorce, they will work to change that legal environment.(19) Thus, social change created pressures to modify the fault grounds for divorce because in a changed society they were no longer efficient for some individuals.
Whatever the acknowledged need for change, actual changes that occur are the
result of the political process. Many political analysts assign a public interest
motive to legislators. Economists and some political scientists, however, taking
a more cynical view see politicians basing their decisions on self-interest.
Their primary goal normally is to be reelected. With that goal, they are particularly
sensitive to the preferences of vocal pressure groups who provide verbal and
financial support.(20) In California, for example, the reform process was dominated
by men, although they had the support of many women's groups.(21) Sometimes
the self-interest of politicians can be more narrowly focused. The assemblyman
primarily responsible for the passage of no-fault divorce in California was
going through a divorce at the time. It did not take a conspiracy for a male-dominated
legislature to enact no-fault divorce legislation that seemed appropriate from
their perspective and was based on the information that they had been provided.
This is especially true when few of the proponents of divorce reform, male or
female, were arguing that no-fault divorce would be a disaster, especially for
divorced women and their children. The California Family Law Act of 1969,(22)
which began the no-fault divorce revolution and set the standard for the statutes
enacted in the other states, was passed by a male dominated legislature.(23)
Much was made of the hypocrisy that occurred under the fault divorce laws,
but it was evidence of the change in society's preferences, not the cause. There
are many laws on the books, such as highway speed limits, that are hypocritical
and these laws can remain on the books for indefinite periods, especially if
they are not enforced. It takes both new circumstances and undesirable enforcement
of existing laws to change laws. Certainly enforcement of the fault divorce
laws was hypocritical, but an increase in the demand for simpler procedures
for dissolving marriages was an important impetus for no-fault divorce legislation.
The male-dominated reform process, together with the absence of a clear understanding
of the repercussions of the legislation, resulted in the enactment of the specific
no-fault divorce laws now in existence.
Economics can provide insights about why no-fault divorce resulted in the deterioration
of the financial situation of divorced women and the children of divorced parents
identified by Weitzman and Peters.(24) Many of the reformers appear to have
been so preoccupied with reducing the hypocrisy of the fault divorce system
that few of them thought about the consequences of the new system--consequences
that included a decline in the bargaining power of married women at divorce
and, therefore, in their financial situations after divorce.(25) The California
Governor's Commission on the Family that initiated the fault divorce debate
in that state did not include any economists or financial analysts.
When marriage was a more stable institution and the laws determining the grounds for divorce were strictly enforced, there were only a few divorces and the laws that controlled the financial repercussions at divorce were of secondary importance. As the demand for divorce by some spouses increased, these individuals found that the legal grounds for divorce were more restrictive than they wished. They also found the financial repercussions of divorce prescribed by the law unacceptable. The parties could fabricate evidence to establish the grounds for divorce and then, in theory, the courts would decide on property settlements based on legal standards.(26) In fact, under the fault divorce laws, most divorcing couples with significant wealth chose to negotiate a settlement rather than to rely on the courts' allocation.(27) Often one party did not want a divorce and a more generous financial settlement and custody of any children was necessary to induce that party to initiate the lawsuit and provide the obligatory testimony.(28) The innocent party had to be the plaintiff, so that a contested divorce was difficult under the fault divorce laws.(29) Even if both parties wanted a divorce, they had reasons to reject the legal financial arrangements as inequitable. Most women who had pursued the traditional roles as housewives and mothers knew that short-term alimony, limited child support, and the property allocation provided by law would leave them in a precarious financial position, especially compared to the financial condition of their husband.
Problems developed with no-fault divorce because the reformers did not recognize the interrelationship among laws concerning the grounds for divorce, parental rights, and the financial condition of the spouses. Changing one set of rules without changing the others destroyed a delicate balance. Under the fault divorce statutes, the custodial and financial settlements were commonly based on the negotiations of the parties, with the spouse who did not want to dissolve the marriage having substantial power over the outcome. With no-fault divorce eliminating negotiations to establish the grounds for divorce, the previously disregarded laws that governed the custodial and financial repercussions of divorce became much more important--the financial condition of divorced women and children of divorced parents deteriorated.
In some states, eliminating the fault grounds for divorce was accompanied by
the removal of fault as a factor in the other aspects of divorce such as property
settlements and alimony. No-fault divorce eliminated the presumption that couples
had an obligation to remain married and removed any reason for the party seeking
the divorce to compensate the other spouse. California, for example, required
an equal division of marital property. Another problem arose from the legal
definitions of property failing to conform to basic financial principles. This
discrepancy had little practical effect when most divorces were settled with
only minimal reference to the applicable laws. But that all changed with the
introduction of no-fault divorce.
Because marriage consists of two people coming together to participate in a collective action, economists view the financial aspects of the relationship much as a business partnership: If the marriage is dissolved, the parties should share the gains or losses of the partnership, but assets acquired outside marriage are not part of this distribution. Based on this framework, economic analysis would support a strict application of the principles of community property, in which each spouse has a half interest in property created during the marriage by their collective activities. From a statutory perspective, marital property is all property that is not defined as either spouse's separate property, while separate property is property that the parties brought into the marriage and property that came to them during the marriage by will, bequest, or devise. Strict community property concepts are the basis of property divisions at the dissolution of marriages in only a minority of the states, but there has been a trend in all states to move toward an equal distribution of marital property at divorce.(30) As we will see, the problem with this distribution of property at divorce is not the definitions of separate and marital property, but the underlying definition of property itself.
What Is Property?
The statutes that defined how property was to be allocated at divorce, under fault and no-fault, did not define what is property.(31) That task has been left to the courts, which tend to recognize only items for which there is tangible evidence as property. These items include houses and cars as well as shares of stock or bonds. What the courts have historically called "property" should be just another name for the items that economists and financial analysts have identified as assets. From a financial perspective, assets exist and have value because they can provide a stream of future income or services; these items include houses and shares of common stock as well as individuals themselves. From a practical perspective, the actual property settlements under fault divorce had been part of the larger issue of financial settlements with the allocation between property and alimony often driven by tax considerations rather than definitions. With no-fault divorce, it became more likely than under fault divorce that statutes determined the allocation of property. Still, because the definition of property has been too restricted, the items considered in the financial allocations at divorce have also tended to be too restricted.
Financial allocations at divorce tend to ignore the most valuable asset owned by most people--their income-earning capacities or human capital. Human capital exists because of prior investments, and its value is based on the expected future earnings of the individual. Depending on when critical investments occurred, it can be marital or separate property. Human capital, which has not been recognized by the legal system in a systematic way as property subject to division at divorce,(32) represents a major difference in the assets identified by the legal system and economists.
Shortly after the introduction of no-fault divorce, state legislatures and the courts recognized that something was amiss with the finances of divorced women and the children of divorced parents. They groped for a way to increase financial awards to women. One way was ad hoc adjustments to the definition of property based not on the realization that the definition was conceptually wrong, but instead on a desire to expand the funds available to women and children.(33) The definition of property has been expanded in some jurisdictions to include such obvious assets as pensions and business goodwill.(34) Courts and legislatures also have considered whether intangible items such as degrees, licenses, and the goodwill of professionals should be added to the list of property. Still, the definition of property has not been expanded systematically to cover human capital, and I argue that the failure to incorporate the effects of marriage on the human capital of the spouses into the financial arrangements at divorce in any systematic way is a major cause for divorced women suffering a substantial reduction in their welfare.(35)
The incorporation of an adjustment for the effect of a divorce on the human capital of the parties would compensate a spouse in the often-cited situation in which one spouse has provided financial support while the other spouse was in graduate school. The recognition of human capital is, however, probably even more important in the situation in which the husband and the wife have decided that the family would benefit from one spouse, frequently the wife, pursuing activities that accommodate the career of the other, usually the husband. This decision often reduces the wife's human capital compared to the position that she would be in if either she had never married or the marriage had accommodated her career rather than that of the husband.
Economic analysis of the effect of divorce on the spouses' human capital also requires an adjustment in child support awards. The cost of child custody is not just the direct outlays to maintain the children but also the reduction of income from the presence of children limiting the custodial parent's employment and remarrying opportunities. Children can be an encumbrance that reduces income and opportunities for those who rear them, translating into a reduced human capital at divorce. Economics can provide a framework for evaluating these effects, producing a more systematic and equitable outcome to divorce and correcting for the deteriorating financial condition of divorced women and the children of divorced parents.
The Subjective Costs of Divorce
The effect of marriage on the spouses' human capital can be estimated with reasonable accuracy, but other costs of divorce are more difficult to measure. These costs, which can be financial as well as psychological, are associated with the loss of the companionship of a particular individual, the search for a new mate or social situation, and the impact on the children. The spouse being divorced will often still care about the divorcing spouse, and the loss of this companionship due to the dissolution of the marriage imposes a cost on the divorced spouse. To begin with, the marriage resulted from a search process by the parties. At divorce, the divorcing spouse has decided that he or she is willing to incur the costs, if any, of a new search for another living situation, which often will result in a new mate--and also, unilaterally, imposes search costs on the divorced spouse. If the divorced spouse wants a new mate, this cost can be very high, because many divorced people, especially older women, never remarry.(36) Even if the divorced spouse has no desire to remarry, he or she incurs costs in establishing a new social situation. Last, the divorce can impose costs on the children of the couple. Often these costs are ignored by the divorcing spouse; the failure of no-fault divorce to require the parties to consider these costs directly when considering divorce contributes to the unsatisfactory outcomes of present-day divorce. When these costs are high--as they can be in established marriages, mutual consent divorce might increase social welfare by forcing the spouses to recognize these costs when considering divorce.
Economic analysis then is used to evaluate the impact of no-fault divorce on
individual decisions. It will be observed that the introduction of no-fault
divorce has had numerous effects, including changes in the divorce rate and
the financial situation of the parties as well as other areas of human behavior
such as when people marry and whether married women work outside the house.
A particular concern is the impact of no-fault divorce on the quality of life
for all family members. I conclude with an economic analysis particularizing
the reforms that could lessen the social and individual costs of no-fault divorce.
1. Family Law Act, ch. 1608, §§ 1-32, 1969 Cal. Stat. 3312. The first "pure" no-fault statute was enacted in California in 1969. The California statute has been described as "pure" because it based divorce exclusively on the factual breakdown of the marriage. See Herma Hill Kay, "Equality and Difference: A Perspective on No-Fault Divorce and Its Aftermath," University of Cincinnati Law Review, Vol. 56, 1987, pp. 1-90. Several states already had "no-fault" grounds for divorce, such as incompatibility of temperament, voluntary separation for a period of time, or incurable insanity; by the mid-1960s, eighteen states, Puerto Rico, and the District of Columbia permitted a divorce based on the parties living apart. See Glenda Riley, Divorce: An American Tradition (New York: Oxford University Press, 1991), p. 162. By 1985, all the states had some form of no-fault divorce, either exclusively no-fault grounds or with no-fault grounds added to the fault grounds. For data on the current status of divorce laws, see Linda D. Elrod and Robert g. Spector, "A Review of the Year in Family Law: A Search for Definitions and Policy," Family Law Quarterly, Vol. 31, No. 4, Winter 1998, pp. 613-665
2. No-fault divorce statutes rapidly were enacted by the states. Iowa passed its no-fault divorce statute in 1971. By August 1977, only three states retained essentially fault grounds for divorce. See Doris J. Freed and Henry H. Foster, Jr., "Divorce in the Fifty States: An Overview," Family Law Quarterly, Vol. 11, No. 3, Fall 1977, pp. 297-313. Today only four states (Mississippi, New York, Ohio, and Tennessee) require mutual consent for a no-fault divorce. See Ira Mark Ellman & Stephen D. Sugarman, "Spousal Emotional Abuse as a Tort?," Maryland Law Review, Vol. 55, 1966, p. 1277 n.24.
3. Lawrence M. Friedman, A History of American Law (New York: Simon and Schuster, 1973), pp. 179-184, 434-440.
4. Mary Ann Glendon notes, "The fault-oriented divorce law of the recent past furnished opportunities for one spouse (usually the wife) to obtain a settlement more generous than a court might have awarded in exchange for cooperation in obtaining or expediting the divorce or as the price of avoiding the embarrassing publicity or a contested divorce." Mary Ann Glendon, The New Family and the New Property (Toronto: Butterworths, 1981), p. 61.
5. No-fault divorce statutes reduced the bargaining power of the spouse who did not want to dissolve the marriage. Since women frequently are adversely affected by divorce, it has been commonly accepted that they are reluctant to seek a divorce. However, there is evidence that is not the case. Under fault divorce, most negotiated divorce actions were filed by women because the defendant had to be the party who was at fault, so it was not clear who had initiated the divorce. See B. G. Gunter and Doyle Johnson, "Divorce Filing as Role Behavior: Effect of No-Fault Law on Divorce Filing Patterns," Journal of Marriage and the Family, Vol. 40, August 1978, pp. 571-574. After the introduction of no-fault divorce, it appears that women are more likely to want out of marriage and to eventually file for divorce. See Sanford L. Braver, Marnie Whitley, and Christine Ng, "Who Divorced Whom? Methodological and Theoretical Issues," Journal of Divorce and Remarriage, Vol. 20, No. 1/2, 1993, pp. 1-19.
Still, the spouses who were the most in need of bargaining power at divorce frequently were wives in marriages of long duration. See Lenore J. Weitzman, The Divorce Revolution (New York: Free Press, 1985). The vulnerability of women after lengthy marriage has been explained by the timing of the contributions of men and women to marriage. The contributions of married women are often front-end loaded relative to married men: Married women have traditionally placed a special emphasis on child rearing that occurs early in a marriage, but the income-earning contribution of the husband tends to increase over the duration of the marriage. When the children leave the home, the contribution of the wife to the marriage can fall, although the contribution of the husband continues to grow. Without the protection of a long-term arrangement such as was provided to a certain extent by fault divorce, some husbands may conclude that they are better off divorced. This is especially true when the financial obligations incurred by the husband to the wife due to the divorce are modest. See Lloyd Cohen, "Marriage, Divorce, and Quasi Rents; or `I Gave Him the Best Years of My Life,'" Journal of Legal Studies, Vol. 16, June 1987, pp. 267-304.
6. Lynne M. Casper, "My Daddy Takes Care of Me! Fathers as Care Providers," Current Population Reports, P70-59, (Washington, DC: US Bureau of the Census, 1997), pp. 1-9. As women have more aggressively pursued a career, the likelihood has increased that the primary care giver has been the father. In a celebrated case in Florida, an appeals court overruled a trial court which had awarded an attorney mother primary residential custody of a couple's children in lieu of the architect father who was the primary care giver. Not only did the court give the father primary residential custody, it also increased the alimony that he had been awarded. Young vs. Hector, 1998 Fla. App. LEXIS 7517 (1998).
7. Anne E. Winkler, "Earnings of Husbands and Wives in Dual-Earner Families," Monthly Labor Review, Vol. 121, No. 4, April 1998, pp. 42-8.
8. This conclusion is documented in Weitzman, Divorce Revolution, and H. Elizabeth Peters, "Marriage and Divorce: Informational Constraints and Private Contracting," American Economic Review, Vol. 76, No. 3, June 1986, pp. 437-454. The conclusions and methodology of Weitzman have been challenged by a number of authors, including Herbert Jacob, "Faulting No-Fault," in Howard S. Erlanger, ed., "Review Symposium on Weitzman's Divorce Revolution," American Bar Foundation Research Journal, Vol. 1986, No. 4, Fall 1986, pp. 773-780; Herbert Jacob, Silent Revolution: The Transformation of Divorce Law in the United States (Chicago: University of Chicago Press, 1988); Herbert Jacob, "Another Look at No-Fault Divorce and the Post-Divorce Finances of Women," Law and Society Review, Vol. 23, No. 1, 1989, pp. 95-115; Marygold S. Melli, "Constructing a Social Problem: The Post-Divorce Plight of Women and Children," in Erlanger, ed., "Review Symposium on Weitzman's Divorce Revolution," pp. 759-772; Richard R. Peterson, "A Re-Evaluation of the Economic Consequences of Divorce," American Sociological Review, Vol 61 (June 1995), pp. 528-536; Jana B. Singer, "Divorce Reform and Gender Justice," North Carolina Law Review, Vol. 67, 1989, pp. 1103-1121; Marsha Garrison, "The Economics of Divorce: Changing Rules, Changing Results," in Stephen D. Sugarman and Herma Hill Kay, eds., Divorce Reform at the Crossroads (New Haven, CT: Yale University Press, 1990), pp. 75-101; and Stephen D. Sugarman, "Dividing Financial Interests in Divorce," in Sugarman and Kay, eds., Divorce Reform at the Crossroads, pp. 130-165.
9. Weitzman, Divorce Revolution, p. 323.
10. Peters, "Marriage and Divorce," p. 449.
11. Michael Wheeler, No-Fault Divorce (Boston: Beacon, 1974), p. 8 and Lynne Carol Halem, Divorce Reform (New York: Free Press, 1980), p. 238.
12. Wheeler, No-Fault, p. 15.
13. Weitzman, Divorce Revolution, p. 16, cites Judge Roger Pfaff, who pioneered the use of conciliation courts in Los Angeles, arguing that the trend toward higher divorce rates could be reversed by California adopting premarital and predivorce conciliation procedures.
14. Gary S. Becker, A Treatise of the Family, enl. ed. (Cambridge, MA: Harvard University Press, 1991), p. 350, notes that between 1950 and 1977, the legitimate birth rate declined by about one-third, the divorce rate more than doubled, the labor force participation rate of married women with young children more than tripled, and the percent of households headed by women with dependent children also almost tripled. Between 1970 and 1996, the percent of males and females eighteen years old and over that were married fell from 75.3 percent and 62.1 percent to 65.8 percent and 58.6 percent, respectively. Meanwhile, the percent of males and females eighteen years old and over that were divorced rose from 2.5 percent and 7.8 percent to 6.1 percent and 10.5 percent, respectively. Statistical Abstract of the United States, 1997 (Washington, DC: Government Printing Office, 1997), Table 58, p. 55.
15. For example, see Andrew J. Cherlin, Marriage, Divorce, Remarriage (Cambridge, MA: Harvard University Press, 1992); Kingsley Davis, ed., Contemporary Marriage: Comparative Perspectives on a Changing Institution (New York: Russell Sage, 1985); Mary Ann Glendon, The Transformation of Family Law, (Chicago, IL: University of Chicago Press, 1989); Halem, Divorce Reform; Max Rheinstein, Marriage Stability, Divorce and the Law (Chicago: University of Chicago Press, 1972); and Weitzman, Divorce Revolution.
16. Paul A. Samuelson and William D. Nordhaus, Economics, 15th ed. (New York: McGraw-Hill, 1995), p. 4.
17. See Dennis C. Mueller, Public Choice II, (Cambridge, UK: Cambridge University Press, 1989) and James S. Coleman, Foundations of Social Theory (Cambridge, MA: Belknap Press, 1990). Coleman has applied rational choice theory to the family. Ibid., pp. 579-609.
18. Gary S. Becker, William Landes, and Robert Michael, "An Analysis of Marital Instability," Journal of Political Economy, Vol. 85, No. 6, 1977, p. 1184, concludes that the divorce rate, which accelerated after 1960, can be explained in part by "the decline over time in the number of children, the growth in labor force participation and earnings power of women, the growth in the breadth of the remarriage market as more persons become divorced and perhaps also the growth in legal access to divorce, illegitimacy, and public transfer payments."
19. Victor R. Fuchs, Women's Quest for Economic Equality (Cambridge, MA: Harvard University Press, 1988), p. 29, notes that it is less likely that legislation alters behavior than that changes in behavior initiate changes in legislation--legislators tend to be attuned to basic socioeconomic forces and to respond to the legislative demands created by the new behavior.
20. Gary S. Becker, "A Theory of Competition Among Pressure Groups for Political Influence," Quarterly Journal of Economics, Vol. 98, 1983, pp. 371-400.
21. The California Governor's Commission on the Family consisted of individuals from male-dominated professions, including two state senators, one assemblyman, five judges, six attorneys, two law school professors, one social worker, four physicians, and one clergymen. See Halem, Divorce Reform, p. 240. Fourteen of the fifteen members of the public who testified before the commission were men and ten men identified themselves as divorced. The California Commission on the Status of Women supported the removal of fault from divorce. "Report of the Advisory Commission of the Status of Women," California Women, 1969, pp. 79-80.
22. Family Law Act, ch. 1608, §§ 1-32, 1969 Cal. Stat. 3312.
23. In 1970, the Uniform Marriage and Divorce Act was approved by the National Conference of Commissioners on Uniform State Laws. The uniform act adopted as the sole ground for divorce "that the marriage is irretrievably broken." 9A Uniform Laws Annotated 91(1979). Homer H. Clark, Jr., The Law of Domestic Relations in the United States, 2d ed. (St. Paul, MN: West, 1988), p. 411.
24. Lenore J. Weitzman, "The Economics of Divorce: Social and Economic Consequences of Property, Alimony and Child Support Awards," UCLA Law Review, Vol 28, 1981, pp. 1181-1268; Weitzman, Divorce Revolution, and Peters, "Marriage and Divorce."
25. Weitzman, Divorce Revolution, p. 19.
26. Max Rheinstein notes that collusive practices and migratory divorce had been common in the United States under fault divorce. See Max Rheinstein, Marriage Stability, pp. 247-260 and "A Survey of Mental Cruelty as a Ground for Divorce," De Paul Law Review, Vol. 15, 1965, pp. 159 and 163.
27. Under fault divorce, approximately 90 percent of divorces were uncontested. This figure understates the percent that probably were uncontested as those divorces in which the defendant filed an answer or offered any evidence in opposition to the divorce were counted as contested. See Rheinstein, Marriage Stability, p. 248. The "Report of the Governor's Commission on the Family," Sacramento, CA, December, 1966, pp. 30-31, estimated that 94 percent of divorce hearings in California were uncontested and, p. 119, n. 23, that they were granted with pro forma testimony as to fault.
28. This is supported by evidence that there was an increase in the proportion of men filing for divorce after the introduction of no-fault. Gunter and Johnson, "Divorce Filing," pp. 571-574.
29. Harry D. Krause, Family Law, 3rd ed. (St. Paul, MN: West, 1995), p. 335.
30. Ibid., p. 102.
31. Clark, Domestic Relations, p. 595.
32. Mary Ann Glendon, "Family Law Reform in the 1980's," Louisiana Law Review, Vol. 44, No. 6, July 1984, p. 1559, expresses the commonly accepted view that the only significant property of a young couple was a house and its contents. She does not recognize that the spouses have their individual human capital that can be valuable and may have been affected by the marriage. See Allen M. Parkman, "Human Capital as Property in Divorce Settlements," Arkansas Law Review, Vol 40, No. 3, 1987, pp. 439-467 and Allen M. Parkman, "Bringing Consistency to the Financial Arrangements at Divorce," Kentucky Law Journal (forthcoming).
33. There are problems associated with a concept called "professional goodwill" that was one of the attempts by the courts to create property to allocate to wives. See Allen M. Parkman, "The Treatment of Professional Goodwill in Divorce Proceedings," Family Law Quarterly, Vol. 18, No. 2, Summer 1984, pp. 213-224.
34. J. Thomas Oldham, Divorce, Separation and the Distribution of Property, (New York: Law Journal Seminars-Press, 1997), pp. 7-1 - 7-153.
35. The principles developed here are relevant for both men and women. The situation that normally requires an adjustment in the property settlement to incorporate the effect of the marriage on the human capital of the spouses is when one spouse made major sacrifices in his or her employment opportunities to accommodate the other spouse. Generally, wives have been the spouses that make these adjustments, but as the economic opportunities of women increase, we would expect there to be pressure for more husbands making these sacrifices. Casper, "My Daddy."
36. While the remarriage rates in 1990 were similar for men and women ages 25-29, the rate for women compared to men fell as their ages increased. For example, by ages 45-49 the remarriage rate was 88 per 1,000 for men, but 43 per 1,000 for women. Sally C. Clarke, "Advance Report of Final Marriage Statistics, 1989 and 1990," Monthly Vital Statistics Report, National Center for Health Statistics, Vol. 43, No. 12, July 14, 1995, Table 6, p. 11.