No-fault laws and at-fault people

International Review of Law and Economics

Volumn 18, Issue 3, 1998, Pages 325-340

  Brinig, Margaret F ^a   Buckley, F H ^a  

^a GEORGE MASON UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 0013068690     PISSN: 01448188     EISSN: None     Source Type: Journal    
DOI: 10.1016/S0144-8188(98)00008-8     Document Type: Article

References (76)

1. Wark, John T. "Finding Fault." Detroit News, February 13, 1996.
2. Peters, H. Elizabeth. (1986). "Marriage and Divorce: Informational Constraints and Private Contracting." American Economic Review 76:437.
3. The popular objections to fault grounds, including the distasteful and collusive process of "staged" grounds, are discussed in Herbert Jacobs, The Silent Revolution, University of Chicago Press, 1988.
4. 9A U.L.A. § 305.
5. Colo. Rev. Stat. § 14-10-107 (1995).
6. See Marvell, Thomas B., (1989). "Divorce Rates and the Fault Requirement." Law & Society Review 23:543, 544; Paul A. Nakonezy, Robert D. Shull, and Joseph Lee Rodgers. (1995). "The Effect of No-Fault Divorce Law on the Divorce Rates Across the 50 States and Its Relation to Income, Education and Religiosity." Journal of Marriage and the Family 57:477.
7. See Marvell, Thomas B., (1989). "Divorce Rates and the Fault Requirement." Law & Society Review 23:543, 544; Paul A. Nakonezy, Robert D. Shull, and Joseph Lee Rodgers. (1995). "The Effect of No-Fault Divorce Law on the Divorce Rates Across the 50 States and Its Relation to Income, Education and Religiosity." Journal of Marriage and the Family 57:477.
8. Mnookin, Robert H., and Lewis Kornhauser. (1979). "Bargaining in the Shadow of the Law: The Case of Divorce." Yale Law Journal 88:950.
9. Peters, supra note 2.
10. Allen, Douglas W., (1992). "Marriage and Divorce: A Comment." American Economic Review 82:297. See also, Allen Parkman, (1992). "Unilateral Divorce and the Labor Force Participation Rate of Married Women, Revisited." American Economic Review 82:671.
11. Allen, Douglas W., (1992). "Marriage and Divorce: A Comment." American Economic Review 82:297. See also, Allen Parkman, (1992). "Unilateral Divorce and the Labor Force Participation Rate of Married Women, Revisited." American Economic Review 82:671.
12. Peters, H. Elizabeth. "Marriage and Divorce: Reply." American Economic Review 82:686.
13. "Inefficient Dissolutions as a Consequence of Public Goods: The Case of No-Fault Divorce." Journal of Legal Studies 22:503.
14. About 60% of married couples have children. Elizabeth Scott, (1990). "Rational Decisionmaking about Marriage and Divorce." Virginia Law Review 76:9, 94, at note 8.
15. We preferred our definition of fault to that of the 1996 American Law Institute (ALI) Principles of Family Dissolution - Analysis and Recommendations 60 (Tentative Draft No. 2). Our list of fault states differs from that of the ALI Report in three respects. First, unlike the ALI, we label a state as a fault state if divorces maybe obtained on fault grounds, because this permits the innocent party to introduce marital misbehavior into settlement negotiations. By contrast, the ALI looks only to fault as it involves alimony or property distribution. Id. at 17. This difference affects three states. See Alaska Rev. Stat. § 25.24.050 (1995); Maine Rev. Stat. Ann. tit 19, § 691 (1995); and N.M. Stat. Ann. § 40-4-1 (1996). Second, our list is based on the 1979 to 1990 period, whereas the ALI list is from 1996. Fault is penalized in fewer states today than during the period of our study. Delaware, Illinois, and Kentucky all moved to no-fault between 1979 and 1990. Third, we excluded Nevada from our study as an outlier because it is a national divorce haven.
16. We preferred our definition of fault to that of the 1996 American Law Institute (ALI) Principles of Family Dissolution - Analysis and Recommendations 60 (Tentative Draft No. 2). Our list of fault states differs from that of the ALI Report in three respects. First, unlike the ALI, we label a state as a fault state if divorces maybe obtained on fault grounds, because this permits the innocent party to introduce marital misbehavior into settlement negotiations. By contrast, the ALI looks only to fault as it involves alimony or property distribution. Id. at 17. This difference affects three states. See Alaska Rev. Stat. § 25.24.050 (1995); Maine Rev. Stat. Ann. tit 19, § 691 (1995); and N.M. Stat. Ann. § 40-4-1 (1996). Second, our list is based on the 1979 to 1990 period, whereas the ALI list is from 1996. Fault is penalized in fewer states today than during the period of our study. Delaware, Illinois, and Kentucky all moved to no-fault between 1979 and 1990. Third, we excluded Nevada from our study as an outlier because it is a national divorce haven.
17. We preferred our definition of fault to that of the 1996 American Law Institute (ALI) Principles of Family Dissolution - Analysis and Recommendations 60 (Tentative Draft No. 2). Our list of fault states differs from that of the ALI Report in three respects. First, unlike the ALI, we label a state as a fault state if divorces maybe obtained on fault grounds, because this permits the innocent party to introduce marital misbehavior into settlement negotiations. By contrast, the ALI looks only to fault as it involves alimony or property distribution. Id. at 17. This difference affects three states. See Alaska Rev. Stat. § 25.24.050 (1995); Maine Rev. Stat. Ann. tit 19, § 691 (1995); and N.M. Stat. Ann. § 40-4-1 (1996). Second, our list is based on the 1979 to 1990 period, whereas the ALI list is from 1996. Fault is penalized in fewer states today than during the period of our study. Delaware, Illinois, and Kentucky all moved to no-fault between 1979 and 1990. Third, we excluded Nevada from our study as an outlier because it is a national divorce haven.
18. Mont. Code Anno. § 40-4-203 (1995). The "relevant facts" might refer to the parties' age or earning capacity but not to matrimonial fault.
19. Va. Code Ann. § 20-107.1 (1995). Labeling the law as fault or no-fault sometimes required an examination of case law to see whether fault was penalized in states where the parties were given the option of seeking a divorce on either fault or no-fault grounds.
20. Towles v. Towles, 256 S.C. 307, 182 S.E.2d 53 (1971).
21. Richard A. Posner, (1992). Sex and Reason, Cambridge, MA: Harvard University Press, p. 249;
22. see also Margaret F. Brinig, and Steven M. Crafton, (1994). "Marriage and Opportunism." Journal Legal Studies 23:869, 873.
23. Scott J. South, (1985). "Economic Conditions and the Divorce Rate: A Time-Series Analysis of the Postwar United States." Journal of Marriage and Family 47:31. Writing much earlier, this is the sentiment of David Hume, (1987). Of polygamy and divorces. In Essays: Moral, Political and Literary, Eugene Miller, ed. 181-190. Indianopolis, IN: Liberty Classics. The fact that law does have an impact on behavior, particularly moral behavior, is the focus of Carl E. Schneider, (1992). "The Channelling Function in Family Law." Hofstra Law Review 20:495.
24. Scott J. South, (1985). "Economic Conditions and the Divorce Rate: A Time-Series Analysis of the Postwar United States." Journal of Marriage and Family 47:31. Writing much earlier, this is the sentiment of David Hume, (1987). Of polygamy and divorces. In Essays: Moral, Political and Literary, Eugene Miller, ed. 181-190. Indianopolis, IN: Liberty Classics. The fact that law does have an impact on behavior, particularly moral behavior, is the focus of Carl E. Schneider, (1992). "The Channelling Function in Family Law." Hofstra Law Review 20:495.
25. Scott J. South, (1985). "Economic Conditions and the Divorce Rate: A Time-Series Analysis of the Postwar United States." Journal of Marriage and Family 47:31. Writing much earlier, this is the sentiment of David Hume, (1987). Of polygamy and divorces. In Essays: Moral, Political and Literary, Eugene Miller, ed. 181-190. Indianopolis, IN: Liberty Classics. The fact that law does have an impact on behavior, particularly moral behavior, is the focus of Carl E. Schneider, (1992). "The Channelling Function in Family Law." Hofstra Law Review 20:495.
26. Brinig and Crafton, supra note 17.
27. Sanders v. Sanders, 288 S.W.2d 473 (Tenn. 1955) (suggesting that a financial penalty for divorce in antenuptial agreement would be contrary to public policy if the divorce suit was prosecuted in good faith and on reasonable grounds); Norris v. Norris, 174 N.W.2d 368 (Iowa 1970) (impeaching an antenuptial fault clause). See further Theodore F. Haas, (1988). "Rationality and Enforceability of Contractual Restrictions on Divorce." North Carolina Law Review 66:879 (arguing for the enforceability of financial fetters on divorce in antenuptial agreements); Elizabeth Scott, (1994). "Rehabilitating Liberalism in Modern Divorce." Utah Law Review 687:722.
28. Sanders v. Sanders, 288 S.W.2d 473 (Tenn. 1955) (suggesting that a financial penalty for divorce in antenuptial agreement would be contrary to public policy if the divorce suit was prosecuted in good faith and on reasonable grounds); Norris v. Norris, 174 N.W.2d 368 (Iowa 1970) (impeaching an antenuptial fault clause). See further Theodore F. Haas, (1988). "Rationality and Enforceability of Contractual Restrictions on Divorce." North Carolina Law Review 66:879 (arguing for the enforceability of financial fetters on divorce in antenuptial agreements); Elizabeth Scott, (1994). "Rehabilitating Liberalism in Modern Divorce." Utah Law Review 687:722.
29. Sanders v. Sanders, 288 S.W.2d 473 (Tenn. 1955) (suggesting that a financial penalty for divorce in antenuptial agreement would be contrary to public policy if the divorce suit was prosecuted in good faith and on reasonable grounds); Norris v. Norris, 174 N.W.2d 368 (Iowa 1970) (impeaching an antenuptial fault clause). See further Theodore F. Haas, (1988). "Rationality and Enforceability of Contractual Restrictions on Divorce." North Carolina Law Review 66:879 (arguing for the enforceability of financial fetters on divorce in antenuptial agreements); Elizabeth Scott, (1994). "Rehabilitating Liberalism in Modern Divorce." Utah Law Review 687:722.
30. Sanders v. Sanders, 288 S.W.2d 473 (Tenn. 1955) (suggesting that a financial penalty for divorce in antenuptial agreement would be contrary to public policy if the divorce suit was prosecuted in good faith and on reasonable grounds); Norris v. Norris, 174 N.W.2d 368 (Iowa 1970) (impeaching an antenuptial fault clause). See further Theodore F. Haas, (1988). "Rationality and Enforceability of Contractual Restrictions on Divorce." North Carolina Law Review 66:879 (arguing for the enforceability of financial fetters on divorce in antenupti0al agreements); Elizabeth Scott, (1994). "Rehabilitating Liberalism in Modern Divorce." Utah Law Review 687:722.
31. The signaling problem would persist if the parties were asked to elect between a fault and a no-fault regime, as Jeffrey Stake has suggested. Jeffrey E. Stake, (1992). "Mandatory Planning for Divorce." Vanderbilt Law Review 45:397. In the past, the signaling problem was addressed through the appointment of parents to bargain on behalf of their engaged children. Apart from illegality and signaling problems, the myopic might fail to provide for the consequences of divorce in an antenuptial agreement because they ascribe too low a probability to divorce. See Scott, supra note 20, at 722.
32. The signaling problem would persist if the parties were asked to elect between a fault and a no-fault regime, as Jeffrey Stake has suggested. Jeffrey E. Stake, (1992). "Mandatory Planning for Divorce." Vanderbilt Law Review 45:397. In the past, the signaling problem was addressed through the appointment of parents to bargain on behalf of their engaged children. Apart from illegality and signaling problems, the myopic might fail to provide for the consequences of divorce in an antenuptial agreement because they ascribe too low a probability to divorce. See Scott, supra note 20, at 722.
33. Our Box-Cox λs on our fixed-state effects models ranged from 0.38 to 0.43, and on our non-fixed-state effects models ranged from 0.24 to 0.36. Box-Cox transformations are discussed in George C. Judge, R. Carter Hill, William E. Griffiths, Helmut Lütkepohl, and Tsoung-Chao Lee, (1987). Introduction to the Theory and Practice of Econometrics. 2nd ed. New York: Wiley, pp. 555-556.
34. We obtained the number of married couples in each state for 1980 and 1990 from the decennial censuses. For intervening years, we multiplied the state population by the married couple ratio, which we constructed by assuming an equal change each year.
35. Table available from authors.
36. From 1973 to 1991, Nevada's average annual divorce rate was 15.47 per 1000, about three times higher than the mean of 5.08 when Nevada was excluded. The next highest rate was approximately 8.
37. See supra text in notes 14 and 15.
38. In egregious cases, issues of fault may surface in tort actions See Brinig and Crafton, supra note 17, at 893 and note 108. Fault might also result in an annulment. See Brinig, Margaret F., and Michael V. Alexeev, (1994). "Fraud in Courtship." European Journal of Law and Economics 2:45.
39. The evidence from panel studies indicates that payouts are higher in fault states (as we have defined that term). See Margaret F. Brinig, and Michael V. Alexeev, (1993). "Trading at Divorce: Preferences, Legal Rules and Transaction Costs." Ohio State Journal of Dispute Resolution 8:279; Marsha Garrison, (1991). "Good Intentions Gone Awry: The Impact of New York's Equitable Distribution Law on Divorce Outcomes." Brooklyn Law Review 57:621; Michael Kelly and Greer Litton Fox, (1993). "Determinants of Alimony Awards." Syracuse Law Review 44:641; Elisabeth Landes, (1978). "The Economics of Alimony." Journal of Legal Studies 7:35. For example, Yoram Weiss, and Robert Willis, (1993). "Transfers Among Couples in Divorce Settlements." Journal of Labor Economics 11:629, 656 at Table 4, show that divorced wives with children received a mean of $9313 in no-fault states, compared to $5220 in fault states (as we define them). In most of these studies, however, the difference in payouts is not significant.
40. The evidence from panel studies indicates that payouts are higher in fault states (as we have defined that term). See Margaret F. Brinig, and Michael V. Alexeev, (1993). "Trading at Divorce: Preferences, Legal Rules and Transaction Costs." Ohio State Journal of Dispute Resolution 8:279; Marsha Garrison, (1991). "Good Intentions Gone Awry: The Impact of New York's Equitable Distribution Law on Divorce Outcomes." Brooklyn Law Review 57:621; Michael Kelly and Greer Litton Fox, (1993). "Determinants of Alimony Awards." Syracuse Law Review 44:641; Elisabeth Landes, (1978). "The Economics of Alimony." Journal of Legal Studies 7:35. For example, Yoram Weiss, and Robert Willis, (1993). "Transfers Among Couples in Divorce Settlements." Journal of Labor Economics 11:629, 656 at Table 4, show that divorced wives with children received a mean of $9313 in no-fault states, compared to $5220 in fault states (as we define them). In most of these studies, however, the difference in payouts is not significant.
41. The evidence from panel studies indicates that payouts are higher in fault states (as we have defined that term). See Margaret F. Brinig, and Michael V. Alexeev, (1993). "Trading at Divorce: Preferences, Legal Rules and Transaction Costs." Ohio State Journal of Dispute Resolution 8:279; Marsha Garrison, (1991). "Good Intentions Gone Awry: The Impact of New York's Equitable Distribution Law on Divorce Outcomes." Brooklyn Law Review 57:621; Michael Kelly and Greer Litton Fox, (1993). "Determinants of Alimony Awards." Syracuse Law Review 44:641; Elisabeth Landes, (1978). "The Economics of Alimony." Journal of Legal Studies 7:35. For example, Yoram Weiss, and Robert Willis, (1993). "Transfers Among Couples in Divorce Settlements." Journal of Labor Economics 11:629, 656 at Table 4, show that divorced wives with children received a mean of $9313 in no-fault states, compared to $5220 in fault states (as we define them). In most of these studies, however, the difference in payouts is not significant.
42. The evidence from panel studies indicates that payouts are higher in fault states (as we have defined that term). See Margaret F. Brinig, and Michael V. Alexeev, (1993). "Trading at Divorce: Preferences, Legal Rules and Transaction Costs." Ohio State Journal of Dispute Resolution 8:279; Marsha Garrison, (1991). "Good Intentions Gone Awry: The Impact of New York's Equitable Distribution Law on Divorce Outcomes." Brooklyn Law Review 57:621; Michael Kelly and Greer Litton Fox, (1993). "Determinants of Alimony Awards." Syracuse Law Review 44:641; Elisabeth Landes, (1978). "The Economics of Alimony." Journal of Legal Studies 7:35. For example, Yoram Weiss, and Robert Willis, (1993). "Transfers Among Couples in Divorce Settlements." Journal of Labor Economics 11:629, 656 at Table 4, show that divorced wives with children received a mean of $9313 in no-fault states, compared to $5220 in fault states (as we define them). In most of these studies, however, the difference in payouts is not significant.
43. The evidence from panel studies indicates that payouts are higher in fault states (as we have defined that term). See Margaret F. Brinig, and Michael V. Alexeev, (1993). "Trading at Divorce: Preferences, Legal Rules and Transaction Costs." Ohio State Journal of Dispute Resolution 8:279; Marsha Garrison, (1991). "Good Intentions Gone Awry: The Impact of New York's Equitable Distribution Law on Divorce Outcomes." Brooklyn Law Review 57:621; Michael Kelly and Greer Litton Fox, (1993). "Determinants of Alimony Awards." Syracuse Law Review 44:641; Elisabeth Landes, (1978). "The Economics of Alimony." Journal of Legal Studies 7:35. For example, Yoram Weiss, and Robert Willis, (1993). "Transfers Among Couples in Divorce Settlements." Journal of Labor Economics 11:629, 656 at Table 4, show that divorced wives with children received a mean of $9313 in no-fault states, compared to $5220 in fault states (as we define them). In most of these studies, however, the difference in payouts is not significant.
44. The reductionist and unverifiable claim that all variables are social in nature is as unreasonable as the claim that at the bottom all variables are proxies for more fundamental economic conditions or legal variables. For a political explanation of when no-fault laws were introduced, employing a logit estimation technique, see Brinig and Crafton, supra note 17.
45. This is the percentage of members of the labor force who are actively looking for employment.
46. Bumpass, Larry, Teresa Castro Martin and James Sweet, (1990). "Background and Early Marital Factors in Marital Disruption." Madison, WI: Center for Demography and Ecology, unpublished manuscript, pp. 10 and 16 (reporting a two-thirds greater probability of divorce if the husband was unemployed at any time during the first year of marriage).
47. Becker, Gary S., (1991). A Treatise on the Family. Cambridge, MA: Harvard University Press, p. 339.
48. Becker, Gary, Elisabeth M. Landes, and Robert Michael, (1977). "An Economic Analysis of Marital Instability." Journal of Political Economy 85:1141;
49. South, supra note 18, at 37.
50. Norval D. Glenn, and Beth Ann Shelton, (1985). "Regional Differences in Divorce in the United States." Journal Marriage and Family 47:641; Norval D. Glenn, and Michael Supanic, (1984). "The Social and Demographic Correlates of Divorce and Separation in the United States: An Update and Reconsideration." Journal of Marriage and Family 47:563.
51. Norval D. Glenn, and Beth Ann Shelton, (1985). "Regional Differences in Divorce in the United States." Journal Marriage and Family 47:641; Norval D. Glenn, and Michael Supanic, (1984). "The Social and Demographic Correlates of Divorce and Separation in the United States: An Update and Reconsideration." Journal of Marriage and Family 47:563.
52. In 1908, the Labor Department reported that "the divorce rate increases as one goes westward." United States Department of Labor and Commerce, (1908). Marriage and Divorce 1867-1906, I, 14-15, (Reprinted Westport, CT, 1978).
53. Roderick Phillips, (1988). Putting Asunder. Cambridge: Cambridge University Press, p. 452.
54. De Toqueville, Alexis, (1838). Democracy in America. New York, NY: Random House, pp. 276 and 285.
55. The ENTRY variable took the value of 1 for each of the original thirteen states. An ENTRY variable was used to predict state economic growth in Olson, Mancur. (1982). The Rise and Decline of Nations. New Haven, CT: Yale University Press.
56. Phillips, supra note 36.
57. Gary S. Becker, (1993). "The Economic Way of Looking at Behavior." Journal of Political Economy 101:385. See also, ChristopherJ. Bruce, (1994). "An Economic Model of Spousal Support," Part III. Working paper, University of Calgary Department of Economics.
58. Gary S. Becker, (1993). "The Economic Way of Looking at Behavior." Journal of Political Economy 101:385. See also, ChristopherJ. Bruce, (1994). "An Economic Model of Spousal Support," Part III. Working paper, University of Calgary Department of Economics.
59. A point noted well before Becker. See, e.g., Karl Llewellyn, (1932). "Behind the Law of Divorce," Part 1. Columbia Law Review 32:1281, 1290.
60. See, e.g., West Virginia Code §48-1-12b (1994), and the traditional marriage ceremony in the Book of Common Prayer.
61. Becker, et al. supra note 33, pp. 1147-1148; Paula England and Gary Farkas, (1988). Households, Employment and Gender. New York: Aldine Press; William Bishop, (1984). "Is He Married?: Marriage as Information." University of Toronto Law Journal 23:245, 249; Becker, supra note 32, at 337.
62. Becker, et al. supra note 33, pp. 1147-1148; Paula England and Gary Farkas, (1988). Households, Employment and Gender. New York: Aldine Press; William Bishop, (1984). "Is He Married?: Marriage as Information." University of Toronto Law Journal 23:245, 249; Becker, supra note 32, at 337.
63. Becker, et al. supra note 33, pp. 1147-1148; Paula England and Gary Farkas, (1988). Households, Employment and Gender. New York: Aldine Press; William Bishop, (1984). "Is He Married?: Marriage as Information." University of Toronto Law Journal 23:245, 249; Becker, supra note 32, at 337.
64. Becker, et al. supra note 33, pp. 1147-1148; Paula England and Gary Farkas, (1988). Households, Employment and Gender. New York: Aldine Press; William Bishop, (1984). "Is He Married?: Marriage as Information." University of Toronto Law Journal 23:245, 249; Becker, supra note 32, at 337.
65. We re-estimated divorce levels in regressions that omitted the INSURE variable and found that little changed, particularly with respect to our legal coefficients. Data available from authors.
66. 45 Source: Official Catholic Directory, years 1970 to 1991, published by P.J. Kennedy & Sons in association with R.R. Bowker, A. Reed Reference Publishing Company, New Providence, NJ.
67. Max Weber, (1930). The Protestant Ethic and the Spirit of Capitalism.
68. George Gallup Jr. and Jim Castelli, "Attitudes On Marriage Surveyed; Catholic, Protestant Divorce Rates Similar," Washington Post, Saturday, April 8, 1989, at CIS. These figures understate the difference in divorce rates, because Protestants are more likely to remarry and have a second divorce. Although 54% of divorced Protestants remarry, only 39% of divorced Catholics do so. Once again, we re-estimated divorce levels in regressions that omitted the CATHOLIC variable and found that little changed, particularly for our legal coefficients. Data available from authors.
69. Judge 1988: § 11.4. On the need to employ a fixed-state effect model for TSCS data, see Gary Becker, (1993). "Comments on Danzon, Maki, Murray, and Allen." Journal of Labor Economics New York, NY: MacMillan, 11:S326.
70. 2 were 173.857 and 162.311, respectively (again, with 23 degrees of freedom).
71. On CHTA estimation, see Jan Kmenta, (1986). Elements of Econometrics. New York, NY: MacMillan, 618-622.
72. About 75% remarry within 5 years after the divorce. Andrew J. Cherlin, (1981). Marriage, Divorce, Remarriage: Social Trends in the United State. Cambridge, MA: Harvard University Press, p. 29.
73. Source: Department of Labor, Bureau of Labor Statistics, printouts for various years.
74. Parkman, Allen M. (1998). "Why Are Working Women Working So Hard?" International Review of Law and Economics 18:41-49.
75. See Margaret F. Brinig and F.H. Buckley, (1998). "The Price of Virtue." Public Choice (in press).
76. In an OLS model employing a lagged dependent variable, the NO-FAULT coefficient was positive and significant, whereas the PETERS coefficient was positive and insignificant. In an OLS non-fixed-state effects model, both coefficients were positive and insignificant when a lagged dependent variable was employed, and they were positive and significant when it was not. Tables available from authors on request.