Abstract
Richard Posner argues that late twentieth-century divorce-law reform rendered marital relationships in the United States increasingly contractual in nature. Chief among such reforms was the no-fault divorce revolution: the widespread switch in states’ legal regimes from fault-based, mutual-consent divorce to no-fault based, unilateral divorce, which swept across America in the 1970s. While a growing literature considers the no-fault divorce revolution’s effects on divorce rates, almost no work considers its causes. Taking Posner’s observation as its starting point, this paper develops testable hypotheses relating to the potential origins of no-fault divorce reforms in the US.
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Notes
For a discussion of the history of private separation agreements and their enforceability in early modern England, see Leeson et al. (2014).
According to Blumberg (1991), New York’s 1966 divorce-law reform constituted a still earlier no-fault style liberalization, which permitted “divorce by contract.” As she describes this reform (1991: 120): “Husband and wife may jointly and mutually terminate their marriage without any nominally or substantively significant state action. All they have to do is agree on the terms, file their agreement, and abide by its content. At the end of a statutory waiting period, either may convert the agreement into a divorce.” However, as we note below, even under this liberalization, New York’s divorce law remained quite restrictive.
States accomplished such reform by adding no-fault grounds for divorce in their legal codes, which were typically modified to permit divorce in the case of “irretrievable breakdown” or “irreconcilable differences.” The details of this modification varied across states, but most reformed laws required judges to conduct inquiries to determine whether the relationships between spouses seeking divorce were in fact unsalvageable.
The no-fault divorce revolution was not the only divorce-law revolution to render marriage more contractual in the late twentieth century. The “prenuptial-enforcement revolution,” whereby in the 1980s states began implementing reforms that rendered premarital agreements, which typically stipulate the distribution of property in the event of divorce or death, but may also stipulate within-marriage behavior, made marital relationships explicitly contractual in many ways. On the prenuptial-enforcement revolution, see Leeson and Pierson (2015).
Of course, as these authors point out, alternative allocations of rights will still have distributional consequences for spouses.
Allen (1992) subsequently argued that Peters’ results were sensitive to the coding of divorce laws that she used and that other, equally plausible codings produced the result that unilateral divorce did in fact increase divorce rates. Using a different empirical strategy, Nakonezny et al. (1995) also produced results that suggested the adoption of no-fault divorce reform increased divorce rates in the US. Gruber (2004) subsequently made a careful examination of state statutes in connection with his work on the effects of American divorce-law reform, and his coding is now used in most empirical work in this literature.
This is also the view taken by Posner (1992: 216–217) who, while favoring efficiency influences in his account, nevertheless acknowledges that a combination of these pressures and those associated with redistributional influences may be important for understanding aspects of divorce law.
In fact, Brinig and Buckley (1996) provide evidence that inter-state competition for migrants leads some states to become “deadbeat havens”—i.e., to adopt policies that are less vigilant in collecting child-support payments from divorced spouses.
Posner (2007: 152) makes a remark that suggests that, even if divorce-law reform streamlined aspects of the divorce process, it remains possible that such reform could increase the demand for matrimonial lawyers. According to him, divorce-law reform made it more important for courts to adopt a careful economic approach to the calculation of alimony. When divorce was based on fault, a husband who wanted divorce required his wife’s consent, enabling her to bargain for substantial alimony. In contrast, under no-fault/unilateral-divorce law, a husband who wanted divorce did not require his wife’s consent, undermining her ability to accomplish this. It follows that if judges are interested in wives’ welfare, and careful determination of alimony involves more activity by and thus greater demand for matrimonial lawyers, matrimonial lawyers would have had an incentive to lobby for divorce-law reform. This argument, however, seems to be in tension with the efficiency influence logic Posner suggests elsewhere, discussed above, according to which no-fault/unilateral-divorce reform is associated with courts exhibiting less interest in the welfare of women under no-fault/unilateral divorce.
In her review of Jacob (1988), Blumberg (1991) argues that Jacob overstates the radical nature of the 1960s reforms and overlooks New York’s permissive stance regarding migratory divorce. However, this does not invalidate the central point of narrative that New York law was and remained restrictive due, at least in part, to the influence of the Catholic Church. New York did have a permissive stance towards migratory divorces, but traveling abroad and receiving a divorce from a foreign court was extremely costly, as was the 2-year waiting period required for a separation agreement in that state after the 1966 reform. Divorce rates in California remained about twice as high as those in New York during the 1970s, which is an indication that divorce laws in the latter were substantially more stringent than in the former (Leeson and Pierson 2015).
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Leeson, P.T., Pierson, J. Economic origins of the no-fault divorce revolution. Eur J Law Econ 43, 419–439 (2017). https://doi.org/10.1007/s10657-015-9501-4
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DOI: https://doi.org/10.1007/s10657-015-9501-4