Economics and Family Law
Abstract and Keywords
Economists increasingly connect legal changes to behavioral responses that many family law experts fail to see. Incentives matter in families, which respond to changes in legal regulation. Changing incentive structures linked to family law have largely affected marriage, cohabitation, and divorce. Economic analysis has been applied to assess the causes of falling marriage rates and delays in marriage. Much analysis has focused on increases in divorce rates, which appear to respond to legal changes making divorce easier, and to different settlement regimes. Less work has been done in relation to children but some research does exist showing how children are impacted by changes in incentives affecting adults.
Mr. Cohen, tell the Court I love my wife, and it is just unfair that I can’t live with her in Virginia.1
Economists pay considerable attention to family life and the extent to which legal change affects incentive structures within the family. Patterns of family life have changed greatly since the 1960s because of a move away from marriage toward unmarried cohabitation and an increase in divorce rates (Lerman, 2011). More recently, the number of marriages has begun to rise modestly but to a level below that for earlier years.2 The age of first marriage in the United States in 2017 was 29 years for men and 27 years for women compared with 23 and 20 years, respectively, in 1955, with similar increases in other developed countries.3 Divorces in 2016 were almost at a level of one half of all marriages solemnized in the same year, down from immediately preceding years but remaining high compared with earlier decades.4 Recent changes in family trends are spreading to other countries, including those like China that traditionally had stable conditions. Family formation has shown some of the most significant social changes occurring since the end of World War II.
Economic analysis of family structures is often criticized as intruding on family law exceptionalism (Halley & Rittich, 2010) but economists increasingly connect legal changes to behavioral responses that family law experts fail to see. Economic analysis cannot claim the last word on the family but can help in understanding changing incentive structures, such as the link between community property divorce settlements and reductions in female labor supply explored in the literature on household labor supply and intra-household bargaining (Voena, 2015; Chiappori, Fortin, & Lacroix, 2002). Economic analysis enables inquiry into the effects of laws that clearly create incentive structures. What causes a falling marriage rate and delays in marriage? Are increases in divorce a response to legal changes making divorce easier? What are the effects of different settlement regimes on the incentive to divorce? How are children impacted by changes in incentives affecting adults?
Incentives to Form Families
In examining family formation in early work, economists understandably but misleadingly emphasized comparative advantage, which suggests specialization in those activities in which one has the greatest advantage compared with trading partners (Becker, 1993; Becker, Landes, & Michael, 1977). As an example (Dnes, 2018, Chapter 9), assume Cleopatra and Antony each have 40 hours for either domestic or market-based production. Antony can produce $100 worth of either domestic or market production, whereas Cleopatra (who hates domestic duties) can produce $75 in the market but just $50 of domestic product. Antony is more efficient than Cleopatra at both activities, in the ratio 4:3 for market work and 2:1 for domestic work, but has the greatest advantage in domestic activities. If Antony specializes in the home and Cleopatra does the market-based work, their combined output of $175 is at a maximum. No other pattern of specialization produces as much total output. Switching Cleopatra over to the domestic front and sending Antony out to work would lower total output by $25.
Economists no longer emphasize the gain from specialization within marriage as the basis for marriage (Browning, Chiappori, & Weiss, 2014; Grossbard, 2010, 2015). Comparative advantage implies that people would live together providing they have significant relative productivity advantages. Traditionally, one sex has been more suited to domestic production and the other to work outside the home, although Allen (2015) finds very little empirical support for gains from specialization in marriage, instead showing that market earnings swamp household production across different types of modern marriages. Applying economic reasoning to institutions, defined as “rules of the game” by North (1990), suggests examining the key feature of marriage, which is its standardized set of obligations regulating cohabitation. Becker’s early approach predicts cohabitation, not necessarily married cohabitation.
Here, the key feature of marriage is its standardization as a set of marital obligations initially established by canon law and emerging into secular courts in the 17th century. At least in Western societies, marriage law subsequently developed in case law and statute after the 18th century (Stone, 1990). Other factors, such as pressure from religious groups, social and family groups, and private orderings, including rights in relation to children (Edlund, 2013), can influence marriages but, like comparative advantage, can be accommodated by non-marriage arrangements. Pressure from social groups may be satisfied collaterally when marrying for other reasons. Religious pressure should result in religious rather than secular marriage rites, as it once did, but it is the secular ceremony that counts in Western societies. Along with social and group constraints, religious factors point to an expressive function for marriage collateral to another valuable function. Private ordering can be achieved through alternative legal mechanisms and was once so favored by many people (Stone, 1990; Outhwaite, 1995), although in 2018, trusts and contracts rather than Fleet weddings might be prominent.5
In recent work, Edlund (2013) has argued that marriage allows transfer of some parental rights to the father. Yet, many jurisdictions also confer paternal rights by other means such as the unmarried father’s establishing legal paternity. In the United Kingdom, it is sufficient in some cases that the father’s name be on the birth certificate. When living with the mother, the father has parental access anyway, and most jurisdictions no longer exclude illegitimate children from inheritance. The father can also lose parental access following divorce, or even during marriage in some circumstances. Marriage is neither necessary nor sufficient for paternal rights. One needs to ask why the standardized, state-regulated marriage institution is better than other approaches to problems like establishing paternity. Furthermore, why would marriage laws evolve over several centuries simply to safeguard fathering? It is correct that marriage may preserve discretionary paternal support, as made clear in Roe v. Doe, so the father is not compelled by a child-support agency or court to give specified support, but that can hardly be an explanation for developed marriage law affecting both spouses, which in any case predates such legal compulsion.6 There are childless marriages and marriages where both spouses agree not even to try for children.
If one were to focus on marriage in terms of spousal comparative advantage, a simple explanation of declining marriage rates and rising divorce rates may be that the comparative advantage has been eroded by social change. Men and women have become more similar in the labor market (Addison, Ozturk, & Wang, 2018) and there is a trend toward greater shared performance of household tasks (Blom, Kraaykamp, & Verbakel, 2017). This convergence reduces the incentive to cohabit because if comparative advantage disappears so that both Antony and Cleopatra produce $100 output, either in the home or outside, the basis for specialization disappears. A lower economic incentive to cohabit implies fewer marriages unless the economic incentive is swamped by some other factor.
It is indeed true that technical changes, making paid work less physically taxing, increased control of fertility, and modern patterns of education have combined to make women less dependent on men in the family in the sense that their output is higher now, with less specialization. However, unmarried cohabitation has increased. The socioeconomic changes may have reduced the need for a standardized, state-governed marriage rather than the need for less-regulated intimate cohabitation. Nonetheless, this observation brings in the need for close attention to the “rules of the game,” again drawing attention to the functionality of the standardization of marriage by the state. Economists have focused on the impact of legal changes making divorce easier and marriage less valuable.
The erosion of comparative advantage could lead to less cohabitation but could not by itself delay marriage. A reason for the delay might be found in observations of assortative mating that focus on the process of finding a mate with complementary characteristics (Oppenheimer, 1988, 2000). People tend to marry within their own social orbit because complementarities are more easily found that way. Assortative mating is slowed down by factors hindering economic maturity in the parties, and in recent decades, young men have suffered a decline in their ability to be economically independent. The median earnings of men less than 25 years old fell by approximately 25% in real terms over the 40 years before 2015. There was also an increase of over 50% in the ratio of female-to-male real earnings for young earners. The decline in economic maturity for men makes it harder for women to judge the value of longer-term contributions to marriage in terms of specialized roles, even where these involve more sharing of market and domestic tasks in modern marriage (Wax, 2011). Uncertainty could explain part of the delay in marriage. Men may also find it increasingly difficult to assess the long-term value of female contributions to a relationship when the interaction of divorce law and social welfare systems make it easier for either spouse to leave.
Increased divorce rates are consistent with self-insurance, as women delay marriage and child-rearing while they develop skills to fall back on later if a marriage fails. Statistical work suggests that after 1970, the growth of no-fault divorce had a significant, depressing effect on the birth rate (Brinig & Crafton, 1994) after controlling for other factors likely to affect the birth rate, such as the number of marriages. The most compelling interpretation of these trends is that lower divorce costs for men encourage women to be more cautious in having children. Children imply high costs for a woman if there is a divorce, making it difficult to work and remarry. A rational response is to self-insure by developing a career before having children. For men, a rational response to uncertainty over the value of a mate could be to increase careful searching and also delay marriage.
If the key feature of marriage is the standardization over time of legal obligations, then what are the obligations? Relatedly, what purpose is served by the standardization? Clearly, legal regimes differ around the world, but there are relatively minor differences across the common-law world, and most research into the economics of family law has focused on American common-law jurisdictions. Family law in such jurisdictions has its roots in courts of equity as well as common law because trust and settlement laws were used to circumvent disadvantages of pre-19th-century property law (coverture), tending to consolidate property under the husband’s ownership (Friedman, 2005; Probert, 2015). Following the widespread abolition of separate equity courts, family law draws on equity doctrines and statutory law in family courts that became integrated into common-law systems. In legal systems that developed from codification in continental Europe, the civil law or “civilian” jurisdictions, family law is broadly similar to the Anglosphere apart from some differences like a greater tendency to impose property division obligations on unmarried intimate cohabitees. There is also overlap between common-law and civilian jurisprudence in the adoption of community property regimes in states like California. Consideration of traditional law systems, which are often comparable to the early development of family law in the West in emphasizing private and religious ordering, is beyond the scope of this article, but see Shachar (2009) for some details. Developed, secular legal systems, both common-law and civilian, have similar doctrines imposing post-dissolution obligations concerning property division, alimony, and child support. Within-marriage obligations typically include mutual support, although the obligation used to be for the male to support the female and children of the family. In the economic analysis of family law, post-dissolution obligations dominate discussions.
In Western societies, the supply side of regulating marriage originated with the Christian church and initially focused on standardized religious ceremonies (Stone, 1990; Friedman, 2005). The churches developed regulated marriage partly following biblical teaching and partly as a protective mechanism for women and children. The state stepped in increasingly after the 17th century. Lord Hardwicke’s Act of 1753 in England is an exceptionally good example of shifting from the relatively private exchange of vows to a firm requirement for standard obligations evidenced by a civil ceremony backed by laws. The interest of the state, at a time when government was not especially democratic, was slanted toward avoiding the costs of dealing with the fallout from unreliable marriages, such as the sham marriages aimed at obtaining property without long-term liabilities in 17th-century England. Also, wealthy landowners formed an interest group benefiting from clear property rules. Modern states have intervened from time to time in marital obligations, making changes that also reflect concern over public costs attached to changing behavior in marriage and cohabitation (e.g., by legislating to enforce child support obligations regardless of marital status). Modern states have also responded to pressure groups in making changes such as easing divorce laws or recognizing or resisting same sex marriage. Friedman (2005, p. 146) argues that a more mobile society and more equal property ownership in 18th-century America meant that more private and less formal marriage routines persisted, which is consistent with Lord Hardwicke’s Act not being applied to British colonies.
On the demand side, couples have found in standardized marriage a readily available low-cost way of clarifying spousal obligations. The Coase theorem suggests that once a rule is well established, couples can contract around it. Most obviously, they can use prenuptial agreements where law recognizes them; it matters less what the rule is and matters more that it be clear (Dnes, 1998).
This article does not give a detailed economic treatment of any particular jurisdiction’s laws because that would be an inappropriate task in a general encyclopedia. Have in mind a jurisdiction that has either a tailored division of spousal assets typically based on contribution and needs, as in England and Wales, New York, and Virginia, or a community property regime typically presuming equal division of the marital acquest, as in Scotland and California. In addition, expect obligations for child and spousal support. The article is not aimed solely at American jurisdictions, and broad similarities are found across countries and states. It should be obvious that there are detailed differences between U.S. states, commonwealth jurisdictions, and civilian jurisdictions, and equally obvious that academics should not confine their attention to U.S. jurisdictions.
Asymmetric Profiles in Marriage
Specialization within families does not explain the institution of marriage relative to unmarried cohabitation. Historically, marriage was a status relationship that has become more analogous to a contract over time (Sheehan, 1978; Outhwaite, 1995; Friedman, 2005; Probert, 2015).7 Marriage is standardized within any particular jurisdiction, and subjecting oneself to the state’s regulation provides a means for signaling commitment (Rowthorn, 2002). Being subject to a clear regulatory framework can assuage fear of opportunistic behavior that might otherwise exist as the female makes early investments in the marriage that are otherwise vulnerable to expropriation by the male, thereby defining an important element in the institution of marriage (Cohen, 1987, 2002). This life-profile theory of marriage draws heavily on ideas from the study of specific investments in more general long-term contracts more usually studied as creating bargaining costs (Klein, Crawford, & Alchian, 1978) and provides a theoretical basis for the regulated form typically taken by marriage over the past few centuries in Western countries. It helps first to apply the life-profile theory to traditional marriages characterized by lifetime support for women; more egalitarian, modern marriages can then be considered.
In a traditional marriage, many of the homemaking investments provided by the wife are made early and irrecoverably in the marriage, whereas the male’s support grows in value over time and is less sunk. The opportunities of the parties in a traditional setting may change asymmetrically so that the male has an incentive to appropriate benefits of the female’s sunk investment. Divorce imposes costs, equal to at least the cost of finding a replacement spouse of equivalent “value” (this cost is technically an expectations measure of damages, i.e., the replacement cost of the anticipated spousal support and value of lost consortium). Landes (1978) recognized early on that reliable divorce law will encourage investments in the marriage. Cohen’s (1987) insight was that, because of life-cycle asymmetries, the costs of divorce can be imposed opportunistically on a traditional wife. The husband might be tempted to take the wife’s early contributions to the marriage, perhaps comprising support of his career development, and then move out later to enjoy high income without her. There is some statistical evidence to support Cohen’s observation that divorced women with children will find it harder to form new unions compared with a divorced male (Becker et al., 1977) even where the divorced male has children (Vanassche, Corijn, & Matthijs, 2015, p. 868).
Marriage generates psychological and instrumental benefits. Spousal consortium provides psychic benefits and marital obligations protect long-term investments in marital assets. The spouses are unique inputs in the production of a capital asset, the family. Children are, in this view, important marital “outputs.” Insurance is another instrumental gain because spouses share a mutual support obligation. Spouses give up their freedom to seek new partners, which is rational if the gains from marriage exceed the cost of losing that freedom.
Traditional marriages are subject to possible “post-contract opportunism” if the husband simply walks away from the marriage with little financial obligation to the wife after he has built up his career and long after she sunk her investment into child-rearing and homemaking. In the terms used by Williamson (1985) and Tadelis and Williamson (2014), there are some natural “hostages” checking such a tendency: the couple will have grown together; contact with children will be an issue; and there will be costs of finding a new partner. Because opportunism is not likely to be checked entirely by natural hostages, family law takes on an important function in relation to supporting promises (Dnes, 2011).
Property Entitlements and Expectancy
The asymmetric life profiles of men and women imply that making divorce easier after the 1960s disadvantaged older women in traditional marriages and may have made marriage less attractive generally (Cohen, 2002; Swennen, 2015). Economic considerations suggest requiring the leaving spouse to pay full compensation for an abandoned spouse’s lost benefits from the marriage, which would result in “efficient” divorces (Dnes, 2011). Efficiency requires the breached-against party to suffer no loss when the breaching party moves on, best viewed as Kaldor-Hicks efficiency (Graaff, 1957). The concern is that divorce may have been made too cheap. Some U.S. jurisdictions require equal division of assets acquired during marriage, while others require the courts to divide property and award alimony to meet the needs of the divorcing parties. The standards of living of women and men frequently fall after divorce, suggesting that divorce courts do not award anything like expectation damages (Sharma, 2015). Family courts do not pay attention to contract-like thinking, partly because divorce has been based on no-fault grounds since the late 1960s in most U.S. states and many countries, and because they find practical difficulty in valuing costs and benefits. It is the interaction of no-fault divorce with post-divorce obligations that will influence spousal behavior.
The introduction of no-fault divorce settlements in many states, where property division and related obligations are not generally affected by spousal behavior and where this approach is to be distinguished from the introduction of no-fault divorce as such, enabled men to tire of older wives and move on to a new relationship without maintaining the promised lifestyle the wife enjoyed. This greener-grass effect for men can be mirrored by a black-widow effect for women if needs-based approaches toward child support, alimony, and property division make divorce beneficial from a woman’s perspective (Dnes, 1998; Allen, 2011). The parent with care of the children (often the woman) frequently retains long-term ownership of the family home and other key assets. If she tires of her husband and realizes that she can keep most of the family assets under a no-fault, needs-based settlement that does not require her to compensate him in any way, then she may be the one to move on.8
Marriage partners would not lightly move on to greener grass in a system of post-marital obligations based on compensating lost expectations. The parties could agree to divorce because the change increases the welfare of one while the other has welfare at least maintained. This comparison has caused some economists to argue in favor of a specific-performance requirement, allowing divorce but only by consent (Parkman, 1992, 2002). To obtain consent, one spouse would have to compensate the other for loss of at least the expected benefits of the marriage (a spouse might hold out for more). Similar considerations of supporting specific performance underlie the recent moves in some U.S. states to resurrect a tougher marital system, as in the case of Louisiana covenant marriage.
Legislators in Louisiana became so worried about the loss of the signal of commitment in marriage that, in 1997, they introduced covenant marriage as an optional form, which is harder to dissolve. They were followed by Arkansas and Arizona, although generally this movement has not spread, and couples are not much taking up the option within the three states. In covenant marriage, the parties are counseled in terms of the importance of the commitment as they prepare for marriage. If spouses choose a covenant marriage, it cannot be easily dissolved on a no-fault basis because they will need to prove facts like desertion or domestic abuse. The general idea is to return to a firmer set of marriage vows. Some critics have questioned the motives behind couples entering covenant marriages, wondering why they need such a statement of legal hands tying. However, the most obvious explanation of low take-up is that most couples do not value the additional constraints. An implication is that those who do have some weakness in signaling reliability.
In what way does compensating lost expectations differ from old-style fault-based divorce? First, there is a difference between fault and requiring compensation for loss, which follows for unilateral termination of marriage, although this is regarded as a no-fault ground in post-1970s law. Also, fault is often associated with other penalties such as criminal sanctions for physical abuse (Ellman & Lohr, 1997).
Coasean Bargaining and Incentives
It is theoretically possible that changing divorce law may have no effect on the level of divorce (Peters, 1986). If bargaining costs are low, the Coase theorem may be applied to show spouses negotiating to maintain mutual benefits and to prevent divorce whenever there are gains from continuing the marriage. Suppose that spouses share housing and other costs equally, but each keeps any remaining separate income and the marriage allows each spouse to earn more outside the home than if single. When the couple married, they expected the court to divide real property equally upon divorce but to ignore individually titled savings accounts.
Suppose the court begins to divide marital real property differently, to even up the disparity between individual savings. More housing assets will now go to the lower-income spouse, who saved less and now can expect to be financially better off divorced. This marriage is efficient because each earns more when married than when single, and the higher-earning spouse might well offer to transfer some earnings to the other to keep the marriage going. It is therefore possible that legal changes covering settlements might have no effect on the divorce rate, although unlikely because it is difficult for spouses to commit credibly to the reordering of spousal benefits (Landes, 1978). Empirical studies of responses to changes in divorce laws generally do not support such neutrality but instead show significant impacts on divorce levels, age of first marriage, and related variables (Mechoulan, 2006; Wolfers, 2006; Stevenson, 2007; Matouschek & Rasul, 2008). Indeed, the impact of law discovered by the household labor-supply modelers also indicates non-neutrality of legal change (Voena, 2015). It is also possible for bargaining within marriage to be affected by threat points derived from the spouses’ possible withdrawal into non-cooperative separate spheres (Lundberg & Pollak, 1993).
All U.S. states and many other countries, as of 2018, have some form of no-fault divorce laws, although there are important distinctions because some jurisdictions retain fault-based settlement rules, and other relevant laws differ. Empirical work across U.S. states suggests that no-fault legal reform is associated with increases in divorce, although relationships are complex involving interactions between no-fault filing and a jurisdiction’s related laws for such things as property division and prenuptial agreements (Stevenson, 2007; Wolfers, 2006). Also, the impact of legal reform has been found to be outweighed by other influences (Wolfers, 2006). At any rate, divorces per 1,000 of the American population almost doubled between 1960 and 2000, although the rate has stabilized in recent years at around four per 1000. The figures are approximately 0.6% higher on average in no-fault states, such as California, compared with states such as Virginia, which retains fault in financial settlements. Studies have controlled for other factors, particularly by introducing variables reflecting the greater economic independence of women. Between 1960 and 2015, the proportion of women age 35 to 40 participating in paid employment in the United States more than doubled to over 80%. Female real wages also increased over the period, as did welfare payments that might cushion the effects of divorce for nonworking women.
Some statistical studies have found that the move to no-fault divorce caused a temporary increase in divorce rates, as though releasing a bottleneck of pent-up demand for divorce (Ellman & Lohr, 1998; Wolfers, 2006). Using time-series analysis in the context of no significant changes in divorce settlement rules, Binner and Dnes (2001) found a permanent shift in divorce levels for England and Wales (a uniform jurisdiction) following divorce liberalization. Binner and Dnes (2001) are critical of Ellman and Lohr’s (1998) time-series results and advise caution over possible misinterpretation of spikes in differenced data, which in fact can show a permanent shift in levels. Wolfers (2006) showed a spike effect from legislative change but this spike may be sensitive to the inclusion of Californian data (Lee & Salon, 2011).
Changes in divorce law are likely to affect many aspects of behavior within marriage. Studies have commonly found links between the divorce rate and the rate of marriage, suggesting the removal of a valuable commitment signal following the easing of divorce laws. A less obvious intriguing finding suggests that states like California, which impose no-fault divorce settlements when dividing property, show higher levels of domestic violence (Brinig & Buckley, 1998). It seems that when there is no apparent financial consequence from such disgraceful behavior, some separating spouses become violent. More generally, liberalizing divorce does seem to have reduced domestic violence (Stevenson & Wolfers, 2006). No-fault settlements also support greater investment in housing, which becomes less marriage specific, particularly in no-fault settlements in community property states (Stevenson, 2007).
Changes in marriage and divorce laws unambiguously are not neutral in impact. Even if there are doubts about the significance and importance of effects on marriage and divorce rates, the impacts on age of first marriage, domestic violence, and marriage-specific investments show effects from legal change.
Marital Public Goods
Indivisibilities in marital outputs imply spouses may be unable to bargain over ex-post changes in divorce law (Zelder, 1993, 2002, 2009). Such indivisibilities indicate the presence of marital public goods, joint goods from which a spouse cannot be excluded. Consider children, whose time is divisible between parents but whose happiness benefits both parents and from which one parent cannot be excluded. In this view, the enjoyment of parenting is a marital public good, indivisible and not open to bargaining. The law may reinforce indivisibilities in creating presumptions that some assets will always go to one of the spouses (e.g., custody of minor daughters historically went to the mother).
The Zelder paradox arises when a couple has invested heavily in loving elements in the marriage, such as the raising of children, compared with financial elements, such as realty. A spouse in what was a very loving relationship may find difficulty in saving the marriage because marital public goods dominate and there are no bargaining chips with which to induce the other spouse to remain. Many states tend to award the matrimonial home to the parent with childcare responsibilities. Other states divide community property equally. Such rules can put assets of the marriage beyond bargaining and distort negotiations. Divorcing couples often cannot communicate without conflict arising.
One would predict that legal change will have an impact on divorce rates because of costly bargaining, marital public goods, and difficulties in making credible commitments.
Reliance and Restitution Measures of Damages
Courts have focused increasingly on approaches to settlements that are likely to compensate divorced-against spouses inadequately. Apart from the use of needs-based settlements, there have been suggestions to compensate dependent spouses for giving up careers on entering marriage (Tait, 2015, p. 1267). Additionally, some jurisdictions have awarded money for supporting the other spouse’s completion of a professional degree, aiming to disgorge earnings attributable to spousal support. The moves to award opportunity cost correspond to a reliance measure of damages in conventional legal theory and have been criticized for lack of Kaldor–Hicks efficiency and for failing to recognize marriage-specific investments (Brinig & Carbone, 1988; Trebilcock, 1993, p. 47). Those moves aimed at professional degrees correspond to a restitution measure of damages and have been considered in economics (Borenstein & Courant, 1989). In contract law and economics, reliance and restitution measures of damages are generally considered to give inadequate compensation to victims of breach, encouraging non-optimal levels of breach, and to distort incentives away from taking optimal precautions against breach (Dnes, 2018; Posner, 2014).
Because benefits should be expected to exceed the opportunity cost of giving up a previous occupation, compensation for giving up a career would typically give a lower divorce settlement compared with lost expected benefits. Therefore, compensating for opportunity cost (reliance) would tend to make divorce cheaper for the abandoning spouse. Divorce is likely to be encouraged and investments in homemaking would be less protected relative to an expectations measure of damages. The reliance standard is not kind to spouses with poor career opportunities prior to marriage. Trebilcock (1993) gives the example of a cocktail waitress who marries a billionaire. The waitress would gain more from enforcing a promise to share in the billionaire’s lifestyle (expectations) than from getting back the value of the lost former occupation (reliance). The reliance measure lets the billionaire off rather lightly in not internalizing the loss imposed on the divorced-against spouse.
A few U.S. jurisdictions apply restitutionary thinking and allow a divorcing spouse who worked to support the other’s professional training an entitlement to some of the earnings of the trained spouse. This approach (e.g., in New York) may go beyond reimbursing payments such as course fees to an assessment of the income difference made by the support. The award is made to disgorge “unjust enrichment” and is not made if the marriage was long lasting because the “investment” is viewed as having been repaid during the marriage. The treatment of long marriages suggests the New York court mixes the restitution measure of damage with the expectations measure because a long-married abandoning spouse still holds support-linked human capital. There must be evidence that the training enhanced earnings or there can be no unjust enrichment. California limits professional awards to money paid for enumerated purposes such as course fees, taking the view that the spouse could have borrowed elsewhere.
The California approach reflects a payback view of restitution commonly encountered in breach of contract cases when deposits and expenditures made in reasonable reliance on a promise are reclaimed. It is inadequate compensation that denies compensation for lost lifestyle. There is a danger of double counting, which could arise in relation to support of the professional degree and under other headings such as spousal contribution to the marriage more generally. The New York approach is not really restitution and is not quite an expectations measure.
Marriage and Cohabitation in the 21st Century
According to the life-cycle theory of marriage, traditional marriages obligated the husband to provide full insurance to the wife against his initiating marital dissolution. This regulatory model was driven by the inability of women to work outside the home before industrial change increased the scope for labor-market participation. The concentration on domestic production required sunk investments to be made early on, and courts could prevent these investments being expropriated by the husband by applying a liability rule, which should ideally be focused on expectancy (Dnes, 2011). Somewhat more egalitarian forms of marriage and increased unmarried cohabitation have emerged since World War II. The changes could easily have been predicted as following from greater labor-market participation by women. Is the life-cycle theory still useful, given these vast changes? After all, Cohen’s (1987) seminal paper is now over thirty years old and should be reexamined in relation to modern trends.
The insurance function of marriage needs to be judged in relation to the promises that have been made by the spouses. Courts likely did make mistakes in expecting traditional wives, married in the 1950s and divorcing in the 1970s, to spring into labor-market activity after a lifetime of homemaking. Comparably, modern courts can overestimate the need for long-term inter-spousal support obligations. The crucial issue in applying compensation to divorcing spouses is what was promised, to whom, and by whom. If both spouses agreed to maintain independent careers, hiring help over childcare, and dividing any marital acquest equally, then self-insurance would seem to dominate. Imposing old-fashioned obligations on egalitarian couples creates incentives for opportunistic behavior because a financially self-sufficient spouse could agree ex ante to minimal support obligations knowing that a divorce settlement would be based on a traditional indicator of need that is no longer significant.
Spouses can make their property intentions clear by writing a prenuptial agreement. If they specify the settlement to apply in the event of divorce, the job of the court is made much easier. All U.S. jurisdictions follow the Uniform Premarital Agreements Act (UPAA) and recognize “prenups” resulting from fully informed, freely given consent, excluding agreements over child support. Leeson and Pierson (2016) have shown state-level reductions in divorce rates following the adoption of the UPAA, the effect of which was to make prenups more readily enforceable. Prenups have long been present in civilian jurisdictions like France, Germany, and Italy, and in commonwealth countries like Australia, Canada, and New Zealand, but were for many years considered not legally enforceable in England and Wales because of anxieties over duress (Dnes, 1998). In practice, English courts increasingly recognized prenups as de facto enforceable, and in 2010, the U.K. Supreme Court gave them de jure recognition in Radmacher v. Granatino, based on changing social norms surrounding greater independence of spouses.9 Postnuptial agreements may work in a similar manner to define expectancy (Brown & Fister, 2012). It may well be only where such agreements prevail that divorce courts follow something like awarding expectations damages.
Prenups are not commonly used by spouses (Leeson & Pierson’s  data indicate a low proportion), which is curious given the facilitation of substituting private ordering for the standardized regulation offered by the state. They are used by wealthy older spouses who remarry and were used by women in England and colonial America to hold onto property that would otherwise become that of their husbands under the old regime of coverture. An obvious explanation for little general use of prenups is their pointlessness when spouses do not have assets and cannot predict the future.
Given the relatively small share of first marriages in modern intimate cohabitation, it is worth considering whether the nature of marriage has so changed that it might now have no protective function at all. Recent changes in the regulation of marriage raise questions about the future of marriage. Same-sex marriage-equality activists have emphasized a demand for the status and imagery of marriage rather than for the protection of marriage in terms of its obligations. Also, modern couples often delay marriage until they can afford a “big” wedding and frequently incur considerable debt to have one. Does this add up to a changing, expressive role for marriage?
In September 2017, the BBC reported the following:
[An] Italian woman has married herself in a ceremony complete with white dress, three-layer wedding cake, bridesmaids and 70 guests. ‘I firmly believe that each of us must first . . . love ourselves,’ said [the] . . . 40-year-old fitness trainer. ‘You can have a fairytale even without the prince . . . I told friends and family that if I had not found my soulmate . . . I would marry myself,’ she told the La Repubblica newspaper.10
It turns out there is a growing trend to throw a lavish wedding party even when no valid marriage is taking place. The BBC noted that proponents of such ceremonies say, “It is about self-love and acceptance, and claiming the social affirmation normally reserved for couples who wed.” The development is not confined to Italy. Such websites exist in the United States (I Married Me) and Canada (Marry Yourself Vancouver—slogan “Single is the new normal”). The BBC claims singleton weddings can be traced back to 1993.
The growing focus on collateral elements of marriage, like the ceremony, could fit with the reduced economic vulnerability of women. In the 1930s, the view of marriage would have been very different, and ceremonies were generally simple affairs. Is protective marriage simply dying out? Customs do alter over time. Why should marriage be immune to change if its function becomes eroded?
The big wedding may be no more irrational than the revival of the giving of engagement rings in the early 20th century, which Brinig (1990) argues increased a signal of commitment after legal protection was reduced by the passage of heart-balm acts abolishing claims for breach of promise. One explanation for the growth of spending on wedding ceremonies, which can include embracing serious indebtedness, is that legal change has reduced the commitment signal from marriage and that spouses may look for additional signals of commitment. If this change has happened, it would be important that the expenditures are in a sense wasted (i.e., sunk by the promisor to show intent). A further factor here is that the old rule that the bride’s parents pay for the wedding is giving way to more sharing of the costs of the wedding across families, including contributions from the bride and groom themselves.11 Commitment would not be shown as effectively by the spouses based on expenditures made by wider family.
Marriage is becoming increasingly confined to wealthier individuals (Wilcox, Wolfinger, & Stokes, 2015). There is considerable uncertainty over why this should be happening, but the phenomenon is consistent with an expressive function for marriage because wealthy families can better afford a visible expression. Signaling of commitment requires appropriate sunk expenditure given the income level of the spouse wishing to make the signal, which does not require lavish expenditure but just that it be proportionate.
The movement away from marriage and toward intimate cohabitation in many societies is a significant shift in social mores. United States births outside of marriage increased from 5% to 40% of all births between 1960 and 2016. The U.S. National Center for Health Statistics also reports that, over the 2006–2010 period, 48% of women under 44 moved into a first unmarried cohabitation relationship, greatly overshadowing the 23% marrying. Although cohabiters often state that cohabitation is a matter of trying out prior to marriage, this is true only in the sense that weaker potential marriages are filtered out (Sassler, Michelmore, & Qian, 2018). Just 40% of tryouts result in marriage. Cohabitation is unstable compared with marriage, with a dissolution rate of around 25% over 3 years. Similar trends are developing outside the United States.
A puzzling aspect of intimate cohabitation is its apparent mismatch with the interests of many women. Marriage is potentially a good mechanism for supporting long-term family investments, without which women might expect vulnerability to opportunistic behavior (Cohen, 1987). Have changes in women’s economic activity reached a point where the sexes no longer show some asymmetric interdependence? A man’s willingness to offer marriage should remain a very important signal unless there is now zero dependency. Rhoades, Stanley, and Markman (2006) carried out a longitudinal study of spousal commitment based on premarital cohabitation history. Men who cohabited with a spouse before engagement were less committed than those who cohabited after engagement or not at all. The men were less committed to their wives than the wives were to them. The results are consistent with lower provision of lifetime insurance by males and with lingering sunk investments by females; they also raise questions about the accuracy of search theories of marriage matching.
Intimate cohabitation in most common-law jurisdictions is not generally subject to the same kind of settling-up regime as marriage. There is usually no equity-based intervention by a family court to reallocate assets between partners or to create maintenance obligations, as is well illustrated for the United States by Marvin v. Marvin.12 Cohabiting couples generally retain individual property rights and have no mutual support obligations. Courts can only reallocate property between cohabitees or award “palimony” based on evidence of reliance on an agreement. Cohabitees often have a perception that they are common-law husband and wife and that divorce law should apply. In fact, few jurisdictions recognize common-law marriage—Montana is one, whereas California is not.
Actor Lee Marvin (Paint Your Wagon, Point Blank) began a six-year cohabitation relationship with Michelle Triola in 1964. After the relationship broke down, Michelle sued, claiming he had promised lifetime support. The Californian family court found no evidence of either an explicit or implicit contract for long-term support. The holding has become the leading U.S. case illustrating the principle that marriage and cohabitation are not identical. The court is not free to stretch the law of obligations to duplicate family law for meeting post-separation needs. The claims of cohabiting couples must be based on an explicit or implicit contract or related equity doctrines like promissory estoppel, and promises must be proved.
The American Law Institute (2002) has suggested treating cohabitation more like marriage and has advised courts to assess cohabitation according to the extent to which it approximates marriage. The ALI advises courts to minimize the impact of the parties’ intentions, which is odd from an economic perspective. Such a policy would treat cohabitation as a status much like marriage.
Treating cohabitation like marriage would remove a valuable individual choice. It would not remove the signal of commitment attached to marriage because no change would be made to marital obligations. However, the policy could destabilize relationships by causing some people to live apart who might be prepared to form a more serious relationship only if the dissolution obligations were kept light. Worries about the instability of cohabitation do not justify forcing every cohabitee to marry. Cohabitation is not marriage, and a pattern of trying out and parting could be viewed as successful experimentation.
Evidence that women were making early investments in family life and that men were imposing cohabitation rather than marriage could indicate exploitation of the females, according to Cohen’s (1987) life-profile thinking. Such evidence might suggest enforcing marriage-like obligations when cohabitation came to approximate marriage (e.g., after children are born). There does not appear to be evidence of coerced cohabitation. The closest evidence on this issue is in Akerlof, Yellen, and Katz (1996), which really provides a suggestion of changed terms of trade for women in the marriage market (dissatisfied cohabitation) rather than oppression. Akerlof et al. (1996) argue that the availability of contraception reduced the probability of unwanted pregnancy, which was followed by increased competition by females for suitors through being more willing to engage in premarital sex, eventually breaking down social disapprobation of premarital sex. Greater female economic participation could have a similar effect; paradoxically, aspects of female liberation may end up benefiting men as lowered obligations toward women.
Some women and men may be misinformed about the likely outcome of cohabitation and the life-profile problem of making sunk investments in homemaking and child-rearing without a guarantee of sharing in other products of the relationship later. In that case, there might be a case for providing information and education but not one for banning a consensual practice. The key issue here is that parties are free to avoid cohabitation because they could choose marriage.
Same-Sex Marriage Equality
As heterosexuals have apparently increasingly avoided marriage, homosexuals have stepped up campaigns for marriage equality. The debate over extending protective rights to same-sex relationships crystalized into pressure for marriage equality after 2010. United States jurisdictions, most of the United Kingdom (not Northern Ireland), France, the Netherlands, and other countries have extended marriage to same-sex couples. Prior to marriage equality, same-sex cohabitants could register civil partnerships in many jurisdictions, allowing some protection of their financial interests. They could use contracts, trusts, and joint tenancy to safeguard inheritance outside of probate and family law. Thinking about marriage equality casts some of the property-rights issues affecting all marriage partners into sharp relief.
At the core of the life-profile theory of marriage is a claim that the enforcement of long-term support protects reliance investment by the economically vulnerable spouse. Marriage enables spouses to plan their lives and to avoid turning a life-profile asymmetry into exploitation of the economically weaker party. By this reasoning, it would make sense to extend the status of marriage to homosexuals if there were evidence of the same life-profile asymmetry. Otherwise, marriage equality would be functionally pointless, although it might serve collateral purposes like signaling a lifestyle for same-sex participants. Here, institutional economics must proceed cautiously because the presumptively efficient historical arrangement showed no marriage rights and obligations.
Given the nature of the relationships, we might expect much greater equality between the parties, making it unlikely that life-cycle asymmetries would arise. Empirically, greater equality is found between partners in same-sex relationships (Kurdek, 2004; Civettini, 2016). At first sight, the life-profile approach does not support same-sex marriage. Care must be taken: Although it is unlikely that significant sunk investments are made in same-sex unions, the observation does not rule out life-profile asymmetry in all cases. There may be some cases with life-profile issues similar to those affecting heterosexuals and giving the same vulnerability to having domestic investments used opportunistically. The common law generally prohibits small thefts and protects minorities.
In 2015, the Obergefell case produced arguments from the marriage-equality lobby based on a claim of entitlement to recognition by the state equal to that accorded heterosexual spouses.13 The U.S. Supreme Court picked up the argument in terms of substantive due process and equal protection rights under the 14th Amendment of the U.S. Constitution:
. . . the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity . . . Its dynamic allows two people to find a life that could not be found alone . . . The centrality of marriage . . . makes it unsurprising that the institution has existed for millennia and across civilizations. Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together. (Obergefell et al. v. Hodges et al., at p. 4)
The Obergefell court recognized that marriage has changed over time and took the majority view that the main characteristic of marriage is not function but rather the expressive element (“nobility and dignity”) provided by state approval of married cohabitation. By observation, the state in fact provides regulation rather than approval of marriages and the expressive element is collateral. An implication of the expressive theory of marriage as approval is that liberalizing divorce law in the 1970s reflected increasing disapproval of marriage by the state. Why would anyone want approval from the state for a cohabiting relationship? The expressive theory generates several curiosities.
The demand from a pressure group for a signal useful in its cause has won over public opinion and driven legislation in establishing same-sex marriage in many countries. The creation of marriage equality has been noticeably easier in countries that have parliamentary systems, where the cost of political entrepreneurship is lower compared with the United States. From an economic perspective, since marriage equality does not prevent heterosexuals from marrying and since some homosexuals may have comparable life-cycle dependency, we can conclude there is a weak economic case for extending marriage to same-sex unions. The negative externality falling on many married people with strong religious principles, noticed by Allen (2006), may have subsided given the apparent level of public support for marriage equality.
Parent and Child
So far, marriage and divorce have been discussed, but an economic perspective on the relationship between parent and child has not been provided. The relationship is complex, occurs over a long period of time, is characterized by much apparent altruism, and can also be susceptible to opportunistic behavior. Some estimates of the costs of raising a child put the total into millions of dollars and point out the lack of obvious financial returns to having children in modernized societies. It is not clear in those terms why people continue to focus their lives around homes and children to the extent that they do. It was clear that children were a support in old age and were instrumental labor inputs in subsistence farming in earlier periods of history, as they still are in some societies, but this is no longer the case in the United States. Retirees survive on a mixture of savings and Social Security entitlements in all Western societies. There is a powerful motivation toward child-rearing that cannot be explained in simple terms. This impetus may be seen very clearly in the strong desire of infertile couples to adopt children: The motivation to parent transcends biological limits.
A genetic imperative could lie underneath people’s interest in and satisfaction from raising a family (Posner, 1992). With this reasoning, other benefits, such as providing for elderly parents, are incidental. Sociobiology claims to find a genetic imperative behind many aspects of marriage and courtship, where key aspects of attraction are explained by genetic fitness. According to sociobiology, nurturing natural children is about equipping them, in turn, to pass on the genetic code. Adoption shows that the nurturing and reproductive imperative is so strong that not following it leaves people unfulfilled.
The genetic drive may explain where wishes and tastes originate, but it cannot explain details of child-rearing. In exercising their preferences, or perhaps having satisfied Mother Nature and procreated, people’s attention must still be paid to the costs and benefits of alternative behavior in family settings. Economists working to understand the effects of family law come across many examples of how the costs and benefits of alternative behavior affect parenting. In one extreme example, researchers have found that deadbeat parents often move to states where child-support obligations are not firmly enforced (Brinig & Buckley, 1996). Nonpayment of child support clusters in low-enforcement states and is increased by levels of divorce and unmarried births. Measures of time spent with children have a positive effect on the payment of support obligations. When the benefits of parenting fall, parents have less interest in supporting children.
Parents are expected to act in a fiduciary manner on behalf of their children. Historically, this assumption has made courts extremely reluctant to interfere in families. Children have been regarded as firmly under the control of parents and not the state, and they cannot “divorce” their parents. A corollary is a parental obligation to support natural or adopted children. The support obligation is interpreted in terms of financing the reasonable needs of the child within the family, not in terms of the demands of children.14
Parental control extends to medical treatment, reasonable discipline, and to requiring attendance at educational establishments. Education of a child is a parental obligation in the United States and in many other countries such as Canada and the United Kingdom, not a right owed by the state, as is often claimed. The required content of education is set by the states, although there has been accommodating acceptance of home-schooling movements in the United States. Courts will limit parental freedom if it clearly threatens the welfare of a child in an obvious way. Thus, a court may allow a parent to insist on a child having an operation although the child does not wish it, but it may also order a life-saving operation against the parent’s wishes or direct the treatment of the child in other ways. Therefore, it seems that courts wish to avoid the costs of second-guessing parental choices in raising children unless there is a compelling reason to become involved.
Adoption of children is an ancient practice that is now covered by legal principles. Adoption gives the adopter and the child all the rights of a natural parent and child and is ordinarily an irreversible event. In recent decades, the supply of adoptable children has declined because of birth control, a greater acceptance of single parents, increased protection of parental rights where children have been placed into foster care, and declining supplies of foreign adoptees as incomes increase overseas (Kuhn & Lahiri, 2017). It is hardly surprising that a market in adoptable babies has emerged in such conditions of shortages. Payment of compensation to mothers giving up children for adoption is currently illegal throughout the United States and in other countries. Would-be adopters sometimes circumvent the normal private and state adoption agencies by entering into questionable or even illegal financial arrangements with overseas agencies or with American agents willing to locate children for them to adopt. Some economists have suggested that an explicit adoption market would work better than the mixture of regulation and illegal market transactions that currently prevails (Posner, 1987).
Would some market-based approach cure problems in the adoption system? The supply of adoptable children should logically increase. Some mothers who might terminate pregnancies through abortion under current conditions might give birth if they could be compensated for the disruption to their lives that childbirth implies. It can be argued that the children would move to a parent who values them most, at least as measured by willingness to pay. To make such an inquiry is not necessarily an example of taking economics too literally. One could screen parents for such things as mental deficiency or abusive tendencies before they could offer compensation to natural mothers to protect the adopted children in key respects.
Most state regulation of adoption tries to duplicate in a loose sense what a market process would achieve. The regulatory approach takes children from parents who do not value them enough to keep them, whether they are unable or unwilling, and places them with parents who will endure costs in terms of time and money because they value the children more highly. To note that no parent would give up a child because of financial considerations is a poor argument against using markets. Some parents do give up children to illegal markets, and any parent giving up a child does so in some sense because the costs of keeping the child are too high. Some worry that older and handicapped children would not fare well in a market system, but they also often fail to attract adoptive parents as of 2018 in regulated systems.
Surrogacy raises further questions about the limits of freedom of contract in the family area (Banerjee, 2013). Artificial insemination enables a childless couple to have children, providing that one of them is fertile. It is also possible to fertilize human eggs outside of the womb and implant them either in the female partner or into a surrogate. Couples enter contracts with surrogate mothers to start a family. The legal view of the enforceability of such contracts varies across jurisdictions. In the case of Baby M., the New Jersey court declined to enforce a surrogacy contract.15 Since then, several states, such as Indiana, Louisiana, and Kentucky, have decided that surrogate childbearing contracts are legally unenforceable under any circumstances, and some, such as Michigan and Nebraska, treat them as crimes if they involve compensation other than meeting the mother’s medical expenses. In the United Kingdom, surrogacy contracts are also unenforceable, although it is permissible to pay a surrogate’s reasonable expenses.
In the case of Baby M., the surrogate mother, Whitehead, agreed to bear the child of Stern through artificial insemination in exchange for costs plus $10,000 and agreed to terminate her rights as a mother. After the birth of M and upon the subsequent handover to the Sterns, Whitehead became deeply disturbed by the events and fled to Florida with her husband and the baby. The Sterns filed suit, and the court initially ordered that sole custody of the child be granted to Stern and allowed the adoption of Baby M by Stern’s wife. Whitehead appealed, whereupon the court held the surrogacy contract to be void as being contrary to laws governing adoption and the public policy of keeping children with both of their natural parents. The court eventually determined that Whitehead should be granted liberal visitation rights, treating the matter as a variant on a custody dispute between two natural parents plus an adoption issue.
The Baby M court suggested that the legislature resolve the public-policy questions attached to surrogacy. The legislative responses of the states have varied from a few that reluctantly accept surrogacy contracts to a majority that find such contracts illegal and unenforceable. Several states enforce the contracts when there is no monetary payment for the surrogate’s service. One particularly accommodating state is California, where the Supreme Court has held that surrogacy contracts are specifically enforceable if the egg and the sperm are donated by individuals other than the surrogate mother.16
The California court dismissed some of the concerns cited in the Baby M case, claiming there to be no proof that surrogacy exploits poor women to any greater extent than other occupations open to them. The court did not accept the claim that surrogacy encourages an attitude regarding children as commodities and did not like the suggestion that a woman cannot give informed consent to deliver a baby, since it implied that women lacked personal responsibility. The court noted that a decision not to enforce a surrogacy contract denies intending parents a scarce opportunity of procreating a child of their own genetic stock. It also dismissed the suggestion that surrogacy might be upsetting to the children in later life, regarding it as no worse than other mechanisms transferring children between parents.
An application of the Coase theorem tells us that with low bargaining costs, contracts conferring gains from trade on the adults will form whether the law supports enforceability (California) or denies it (New Jersey). The adults should always be able to find a division of the benefits to them that would enable the “trade” to occur. However, the uncertainty surrounding surrogacy contracts will likely cause an increase in bargaining costs and some predictable problems will emerge. The adults will tend to rely on experienced attorneys, who may seem able to secure conformity with the contracts. Also, there will be scope for opportunistic behavior, particularly by the surrogate mother, who could try to extract additional payments close to delivery by threatening a later custody dispute. Nonetheless, some surrogate mothers may be very happy with their role and may get satisfaction from helping others or having additional children without the cost of keeping them. In a recent paper, Pramanick and Banerjee (2016) examine the contractual parameters affecting the surrogate’s level of care of the fetus.
The economic approach to family law has generated many useful insights into several areas of public concern. Work carried out to explain the growth of divorce and reduction in marriage inevitably has an economic focus because of the need to control for socioeconomic variables in studying the impact of legal change. The life-profile model has much to say about divorce settlement regimes and clarifies issues connected with cohabitation. Economics also illuminates less obvious areas to do with the placement of children and can even be used in understanding deadbeat parents and domestic violence.
Cohen, L. R., & Wright, J. (Eds.). (2011). Research handbook on the economics of family law. Cheltenham, U.K.: Elgar.Find this resource:
Dnes, A. W., & Rowthorn, R. (Eds.). (2002). The law and economics of marriage and divorce. New York, NY: Cambridge University Press.Find this resource:
Grossbard, S. (2015). The marriage motive: A price theory of marriage. New York, NY: Springer.Find this resource:
Leeson, P. T., & Pierson, J. (2016). Prenups. Journal of Legal Studies, 45, 367–400.Find this resource:
Posner, R. A. (1992). Sex and reason. Cambridge, MA: Harvard University Press.Find this resource:
Addison, J. T., Ozturk, O. D., & Wang, S. (2018). The occupational feminization of wages. ILR Review, 71, 208–241.Find this resource:
Akerlof, G. A., Yellen, J. L., & Katz, M. L. (1996). An analysis of out-of-wedlock childbearing in the United States. Quarterly Journal of Economics, 111, 277–317.Find this resource:
Allen, D. W. (2006). An economic assessment of same sex marriage laws. Harvard Journal of Law and Public Policy, 29, 949–980.Find this resource:
Allen, D. W. (2011). The anatomy of Canada’s child support guidelines: The effects, details and history of a feminist family policy. In L. R. Cohen & J. Wright (Eds.), Research handbook on the economics of family law (pp. 132–158). Cheltenham, U.K.: Elgar.Find this resource:
Allen, D. W. (2012). The institutional revolution. Chicago, IL: Chicago University Press.Find this resource:
Allen, D. W. (2015). Household production and sexual orientation. Economic Inquiry, 53, 406–418.Find this resource:
American Law Institute. (2002). Principles of the law of family dissolution, analysis and recommendations. Philadelphia, PA: ALI.Find this resource:
Banerjee, S. (2013). Gestational surrogacy contracts: Altruistic or commercial? A contract theoretic approach. The Manchester School, 81, 438–460.Find this resource:
Becker, G. (1993). A treatise on the family. Cambridge, MA: Harvard University Press.Find this resource:
Becker, G., Landes, E., & Michael, R. (1977). An economic analysis of marital instability. Journal of Political Economy, 85, 1141–1187.Find this resource:
Binner, J., & Dnes, A. W. (2001). Marriage and legal change: New evidence from England and Wales. Economic Inquiry, 39, 298–306.Find this resource:
Blom, N., Kraaykamp, G., & Verbakel, E. (2017). Couples’ division of employment and household chores and relationship satisfaction: A test of the specialization and equity hypotheses. European Sociological Review, 33, 195–208.Find this resource:
Borenstein, S., & Courant, P. N. (1989). How to carve a medical degree: Human capital assets in divorce settlements. American Economic Review, 79, 992–1009.Find this resource:
Brinig, M. F. (1990). Rings and promises. Journal of Law, Economics, and Organization, 6, 203–215.Find this resource:
Brinig, M. F. (2000). From contract to covenant. Cambridge, MA: Harvard University Press.Find this resource:
Brinig, M. F., & Buckley, F. (1996). The market for deadbeats. Journal of Legal Studies, 25, 201–232.Find this resource:
Brinig, M. F., & Buckley, F. (1998). No-fault law and at-fault people. International Review of Law and Economics, 18, 235–325.Find this resource:
Brinig, M. F., & Carbone, J. (1988). The reliance interest in marriage. Tulane Law Review, 62, 855–905.Find this resource:
Brinig, M. F., & Crafton, S. (1994). Marriage and opportunism. Journal of Legal Studies, 23, 869–894.Find this resource:
Brown, N. M., & Fister, K. S. (2012). The intriguing potential of postnuptial contract modifications. Hastings Women’s Law Journal, 23, 187–212.Find this resource:
Browning, M., Chiappori, P., & Weiss, Y. (2014). Economics of the family. Cambridge, U.K.: Cambridge University Press.Find this resource:
Chiappori, P., Fortin, B., & Lacroix, G. (2002). Marriage market, divorce legislation, and household labor supply. Journal of Political Economy, 110, 37–72.Find this resource:
Civettini, N. (2016). Housework as non-normative gender display among lesbians and gay men. Sex Roles, 74, 206–219.Find this resource:
Cohen, L. R. (1987). Marriage, divorce, and quasi rents; or, “I gave him the best years of my life.” Journal of Legal Studies, 16, 267–303.Find this resource:
Cohen, L. R. (2002). Marriage: The long-term contract. In A. W. Dnes & R. Rowthorn (Eds.), The law and economics of marriage and divorce (pp. 10–34). New York, NY: Cambridge University Press.Find this resource:
Cohen, L. R., & Wright, J. (Eds.). (2011). Research handbook on the economics of family law, Cheltenham, U.K.: Elgar.Find this resource:
Dnes, A. W. (1998). An economic analysis of a proposal to reform the division of marital assets in England (Research Paper 5/98). Lord Chancellor’s Department, London, U.K.: HMSO.Find this resource:
Dnes, A. W. (2011). Partnering and incentive structures. In L. R. Cohen & J. Wright (Eds.), Research handbook on the economics of family law (pp. 122–131). Cheltenham, U.K.: Elgar.Find this resource:
Dnes, A. W. (2018). Principles of law and economics (3rd ed.). Cheltenham, U.K.: Elgar.Find this resource:
Dnes, A. W., & Rowthorn, R. (Eds.). (2002). The law and economics of marriage and divorce. New York, NY: Cambridge University Press.Find this resource:
Edlund, L. C. (2013). The role of paternity presumption and custodial rights for understanding marriage, Economica, 80, 650–669.Find this resource:
Ellman, I. M., & Lohr, S. (1997). Marriage as contract, opportunistic violence, and other bad arguments for fault divorce. University of Illinois Law Review, 3, 719–720.Find this resource:
Ellman, I. M., & Lohr, S. (1998). Dissolving the relationship between divorce laws and divorce rates. International Review of Law and Economics, 18, 341–359.Find this resource:
Friedman, L. (2005). A history of American law. New York, NY: Simon & Schuster.Find this resource:
Gibbons, R., & Roberts, J. (Eds.). (2014). The handbook of economic organization. Princeton, NJ: Princeton University Press.Find this resource:
Graaff, de V., J. (1957). Theoretical welfare economics. Cambridge, U.K.: Cambridge University Press.Find this resource:
Grossbard, S. (2010). How “Chicagoan” are Gary Becker’s models of marriage? Journal of the History of Economic Thought, 32, 377–395.Find this resource:
Grossbard, S. (2015). The marriage motive: A price theory of marriage. New York, NY: Springer.Find this resource:
Halley, J., & Rittich, K. (2010). Critical directions in comparative family law: Genealogies and contemporary studies of family law exceptionalism. American Journal of Comparative Law, 58, 753–775.Find this resource:
Klein, B., Crawford, R. G., & Alchian, A. A. (1978). Vertical integration, appropriable rents, and the competitive contracting process. Journal of Law and Economics, 21, 297–326.Find this resource:
Kreider, R. M. (2006, August). Remarriage in the United States. Paper presented at the Annual Meeting of the American Sociological Association, Montreal, Canada.Find this resource:
Kuhn, C., & Lahiri, S. (2017). The economics of international child adoption: An analysis of adoptions by U.S. parents. Quarterly Review of Economics and Finance, 64, 22–31.Find this resource:
Kurdek, L. A. (2004). Are gay and lesbian cohabiting couples really different from heterosexual married couples? Journal of Marriage and Family, 66, 880–900.Find this resource:
Landes, E. (1978). Economics of alimony. Journal of Legal Studies, 7, 35–63.Find this resource:
Lee, J. Y., & Solon, G. (2011). The fragility of estimated effects of unilateral divorce laws on divorce rates. B. E. Journal of Economic Analysis and Policy, 11, 1–11.Find this resource:
Leeson, P. T., & Pierson, J. (2016). Prenups. Journal of Legal Studies, 45, 367–400.Find this resource:
Lerman, R. I. (2011). Economic perspectives on marriage. In L. R. Cohen & J. Wright (Eds.), Research handbook on the economics of family law (pp. 72–95). Cheltenham, U.K.: Elgar.Find this resource:
Lundberg, S., & Pollak, R. (1993). Separate spheres bargaining and the marriage market. Journal of Political Economy, 101, 988–1010.Find this resource:
Matouschek, N., & Rasul, I. (2008). The economics of the marriage contract: Theories and evidence. Journal of Law and Economics, 51, 59–110.Find this resource:
Mechoulan, S. (2006). Divorce laws and the structure of the American family. Journal of Legal Studies, 35, 143–174.Find this resource:
North, D. C. (1990). Institutions, institutional change and economic performance. Cambridge, U.K.: Cambridge University Press.Find this resource:
Oppenheimer, V. K. (1988). A theory of marriage timing. American Journal of Sociology, 94, 563–591.Find this resource:
Oppenheimer, V. K. (2000). The continuing importance of men’s economic position in marriage formation. In L. Waite (Ed.), The ties that bind (pp. 283–301). New York, NY: Aldine de Gruyter.Find this resource:
Outhwaite, R. B. (1995). Clandestine marriage in England. Rio Grande, OH: Hambledon Press.Find this resource:
Parkman, A. (1992). No-fault divorce: What went rrong? San Francisco, CA: Westview Press.Find this resource:
Parkman, A. (2002). Mutual consent divorce. In A. W. Dnes & R. Rowthorn (Eds.), The law and economics of marriage and divorce (pp. 57–69). New York, NY: Cambridge University Press.Find this resource:
Peters, H. E. (1986). Marriage and divorce: Informational constraints and private contracting. American Economic Review, 76, 437–454.Find this resource:
Posner, R. A. (1987). The regulation of the market in adoptions. Boston University Law Review, 67, 59–72.Find this resource:
Posner, R. A. (1992). Sex and reason. Cambridge, MA: Harvard University Press.Find this resource:
Posner, R. A. (2014). Law and economics (9th ed.). New York, NY: Wolters Kluwer.Find this resource:
Pramanick, A., & Banerjee, S. J. (2016). Optimal organization of surrogacy contracts and underinvestment. Journal of Quantitative Economics, 14, 217–236.Find this resource:
Probert, R. (2015). Cretney and Probert’s family law. London, U.K.: Sweet & Maxwell.Find this resource:
Rhoades, G. K., Stanley, S. M., & Markman, H. J. (2006). Pre-engagement cohabitation and gender asymmetry in marital commitment. Journal of Family Psychology, 20, 553–560.Find this resource:
Rowthorn, R. (2002). Marriage as signal. In A. W. Dnes & R. Rowthorn (Eds.), The law and economics of marriage and divorce (pp. 132–156). New York, NY: Cambridge University Press.Find this resource:
Sharma, A. (2015). Divorce/separation in later life: A fixed-effects analysis of economic well-being by gender. Journal of Family and Economic Issues, 36, 299–306.Find this resource:
Sassler, S., Michelmore, K., & Qian, Z. (2018). Transitions from sexual relationships into cohabitation and beyond. Demography, 55(2), 511–534.Find this resource:
Shachar, A. (2009). Privatizing diversity: A cautionary tale from religious arbitration in family law. Theoretical Inquiries in Law, 9, 573–607.Find this resource:
Sheehan, M. M. (1978). Marriage theory and practice in the conciliar legislation and diocesan statutes of medieval England. Medieval Studies, 40, 408–460.Find this resource:
Stevenson, B. (2007). The impact of divorce laws on investment in marriage-specific capital. Journal of Labor Economics, 25, 75–94.Find this resource:
Stevenson, B., & Wolfers, J. (2006). Bargaining in the shadow of the law: Divorce laws and family distress. Quarterly Journal of Economics, 121, 267–288.Find this resource:
Stone, L. (1990). The family, sex and marriage in England, 1500–1800. London, U.K.: Penguin.Find this resource:
Swennen, F. (Ed.). (2015). Private ordering in family law: A global perspective. In F. Swennen (Ed.), Contractualisation of family law: Global perspectives. Heidelberg, Germany: Springer.Find this resource:
Tadelis, S., & Williamson, O. (2014). Transaction cost economics. In R. Gibbons & J. Roberts (Eds.), The handbook of economic organization. Princeton, NJ: Princeton University Press.Find this resource:
Tait, A. A. (2015). Divorce equality. Washington Law Review, 90, 1245–1312.Find this resource:
Trebilcock, M. (1993). The limits of freedom of contract. Cambridge, MA: Harvard University Press.Find this resource:
Vanassche, S., Corijn, M., & Matthijs, K. (2015). Post-divorce family trajectories of men and women in Flanders. Demographic Research, 32, 859−872.Find this resource:
Voena, A. (2015). Yours, mine, and ours: Do divorce laws affect the intertemporal behavior of married couples? American Economic Review, 105, 2295–2332.Find this resource:
Waite, L. (Ed.). (2000). The ties that bind. New York, NY: Aldine de Gruyter.Find this resource:
Wax, A. L. (2011). Diverging family structure and “rational” behavior: The decline of marriage as a disorder of choice. In L. R. Cohen & J. Wright (Eds.), Research handbook on the economics of family law (pp. 15–71). Cheltenham, U.K.: Elgar.Find this resource:
Wilcox, W. B., Wolfinger, N. H., & Stokes, C. E. (2015). One nation, divided: Culture, civic institutions, and the marriage divide. The Future of Children, 25, 111–127.Find this resource:
Wolfers, J. (2006). Did unilateral divorce laws raise divorce rates? A reconciliation and new results. American Economic Review, 96, 1802–1820.Find this resource:
Williamson, O. E. (1985). The economic institutions of capitalism. New York: Free Press.Find this resource:
Zelder, M. (1993). Inefficient dissolutions as a consequence of public goods: The case of no-fault divorce. Journal of Legal Studies, 22, 503–520.Find this resource:
Zelder, M. (2002). For better or worse? Is bargaining in marriage and divorce efficient? In A. W. Dnes & R. Rowthorn (Eds.), The law and economics of marriage and divorce (pp. 157–170). New York, NY: Cambridge University Press.Find this resource:
Zelder, M. (2009). The essential economics of love. Teoria, 29, 133–150.Find this resource:
(1.) Loving v. Virginia, 388 U. S. 1, 12 (1967). Loving’s concern was practical, not expressive.
(2.) See Centers for Disease Control and Prevention, National Marriage and Divorce Rate Trends (Provisional 2016).
(4.) See American Factfinder (Census Bureau) Table B12503 Divorces in the Last [Year], and Table B12501 Marriages in the Last Year.
(5.) Outhwaite (1995) gives a fascinating account of the Fleet weddings in 18th-century England, which were carried out in the environs of London’s Fleet Prison. For historical reasons, the location protected clergymen carrying out low-cost informal weddings from prosecution. Most of the weddings were sincere, some were not. Lord Hardwicke’s Act of 1753 did away with all informal marriage in England; since then, there has been no common-law marriage there. Lord Hardwicke (Philip Yorke, 1690–1764) was Lord Chancellor of Great Britain from 1737 to 1756. The Act did not apply in the British colonies.
(6.) For Roe v. Doe, see 324 N.Y.S. 2d 71 (1971).
(7.) A status relationship is one where the entitlements and obligations are defined by identity. Historical examples include landlord and tenant, lord and serf, and man and wife. In one historical example, it was common for a widow to inherit one third of the estate under dower principles. Status relationships have given way to property relations and contract principles, at least in Anglo-American common law. For example, the tenant’s covenant to pay rent now expires upon serious breaches of contract, whereas it would once have continued regardless of landlord’s breach, based purely on tenant’s status.
(8.) Eating her mate’s assets, rather than the mate himself, as in the case of the black widow spider.
(9.) For Radmacher v. Granatino, reference  UKSC 42.
(12.) 122 Cal. Rptr. 555 (C.A. of Cal. 1981).
(13.) Obergefell et al v. Hodges et al., Supreme Court of the United States, No. 14–556, June 26, 2015.
(14.) Roe v. Doe, 324 N.Y.S. 2d 71 (1971)
(15.) Re Baby M., 109 N.J. 396 (N.J.Super.Ch. 1988).
(16.) Johnson v. Calvert, 851 P.2d 776 (Cal. 1993).