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Because of the financial and social hardship faced after divorce, most people assume that generally husbands have instigated divorce since the introduction of no-fault divorce. Yet women file for divorce and are often the instigators of separation, despite a deep attachment to their children and the evidence that many divorces harm children. Furthermore, divorced women in large numbers reveal that they are happier than they were while married. They report relief and certainty that they were right in leaving their marriages. This fundamental puzzle suggests that the incentives to divorce require a reexamination, and that the forces affecting the net benefits from marriage may be quite complicated, and perhaps asymmetric between men and women. This paper considers women's filing as rational behavior, based on spouses' relative power in the marriage, their opportunities following divorce, and their anticipation of custody.
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“These Boots Are Made for Walking”:
Why Most Divorce Filers Are Women
Margaret F. Brinig, College of Law, University of Iowa, and
Douglas W. Allen, Department of Economics, Simon Fraser University
Because of the financial and social hardship faced after divorce, most people assume
that generally husbands have instigated divorce since the introduction of no-fault
divorce. Yet women file for divorce and are often the instigators of separation, de-
spite a deep attachment to their children and the evidence that many divorces harm
children. Furthermore, divorced women in large numbers reveal that they are hap-
pier than they were while married. They report relief and certainty that they were
right in leaving their marriages. This fundamental puzzle suggests that the incen-
tives to divorce require a reexamination, and that the forces affecting the net benefits
from marriage may be quite complicated, and perhaps asymmetric between men and
women. This paper considers women’s filing as rational behavior, based on spouses’
relative power in the marriage, their opportunities following divorce, and their antic-
ipation of custody.
You’ve been messing where you shouldn’t have been messing, and someone
else is getting all your best. ... These boots are made for walking, and that’s
just what they’ll do. One of these days these boots are going to walk all over
you. —Nancy Sinatra
1. Introduction
Throughout most of American history, wives rather than husbands
have filed for divorce. The proportion of wife-filed cases has ranged
Send correspondence to: Margaret F. Brinig, College of Law, University of Iowa,
Boyd Law Building, Iowa City, IA 52242; Fax: (319) 335-9098; E-mail: margaret-
brinig@uiowa.edu.
©2000 American Law and Economics Association
126
Why Most Divorce Filers Are Women 127
from around 60% for most of the 19th century (Chused, 1994; Fried-
man and Percival, 1976) to, immediately after the introduction of no-
fault divorce (Gunter and Johnson, 1978), more than 70% in some states
(Gunter and Johnson, 1978, p. 572 and Table 1; Friedman and Percival,
1976, pp. 71, 75, 81). Today, with some variation among states, it re-
mains slightly above two-thirds. The standard explanations for this behav-
ior include the following: women file because of tradition (Brinig, 1993;
Brinig and Buckley, 1998b);1women file to assure their innocence in the
underlying proceeding;2women file to secure rights to custody, support,
and attorney’s fees (Friedman and Percival, 1976, p. 78; Brinig and Buck-
ley, 1998b; Vernier and Hurlbut, 1939, p. 198); or women file simply
because it is more convenient for them to do so. While these explana-
tions have some merit, even in combination they cannot explain the vari-
ation in filing rates across states (Table 1), the persistence of the “gender
gap” in filing through time, nor the systematic filing behavior we explore
later on.
Economic explanations of divorce, beginning with Gary Becker, stress
the rational weighing of remaining married over becoming single. When
remaining married is no longer attractive, a spouse files for divorce, and
on the surface it is unclear why the bias should be toward women filing.3
What makes the high filing rate for women most puzzling, however, is
that it is generally assumed that overall husbands should be the ones most
wanting out of marriage—particularly since the introduction of no-fault
divorce. This understanding results from the focus on post-divorce finan-
cial status. Even by the most conservative accounts, the average divorced
woman’s standard of living declines from the one she enjoyed during
marriage, and it declines relatively more than does the average husband’s.
Men often have an increase in their material well-being after divorce
(Duncan and Hoffman, 1985; Finnie, 1993; Hill and O’Neill, 1994;
1. Nadine Taub has noted that many of these petitions may be attributable to the
chivalrous custom of allowing the wife to file first (Stark, 1991, p. 1514, note 149).
2. Reid v. Reid (1989) and McLaughlin v. McLaughlin (1986) discuss the standard
requiring justification before the wife’s desertion barred her from obtaining alimony
under a now-amended law (Friedman and Percival, 1976, p. 79).
3. Although we recognize that filing for divorce is not the same as instigating a
divorce, for many of the hypotheses we consider, this assumption will be made for
reasons we will discuss shortly. We will include some evidence that the two are related,
if not identical, when we discuss the Oregon data on long-term separations.
128 American Law and Economics Review V2 N1 2000 (126–169)
Table 1. Historical Filing Rates for Women in the
United States
Locale and Year Percent Where Wife Plaintiff
U.S., 186762
U.S., 188067
U.S., 189066
U.S., 190067
U.S., 190867
U.S., 192268
U.S., 193172.8
U.S., 196070.3
Dade County, Florida, 1962–63∗∗ 71
Fulton County, Georgia, 1962–63∗∗ 73
U.S., 1965 71.4
California, 1966 78.3
New Jersey, 1966 68.1
Florida, 1969 (Sample) 73.4
Polk County Iowa, 1969 80.7
California, 197071.5
New Jersey, 197070.2
Polk County, Iowa, 1972 78.3
Dade County, Florida, 1972–73∗∗ 32
Fulton County, Georgia, 1972–73∗∗ 70
California, 197467.3
New Jersey, 197464.1
Florida, 1974 (Sample)71.5
Connecticut, 1995 69.4
Connecticut, 1995, with children 71.3
*Friedman and Percival, 1976
**Gunter and Johnson, 1978
McLanahan and Garfinkel, 1989; McLanahan and Sandefer, 1994, pp. 86–
88; Peterson, 1996; Smock, 1994). Furthermore, women face longer terms
of low wealth and consumption when they divorce because they are less
likely to remarry than their former husbands (Cherlin, 1992; Clarke, 1995;
Glick, 1980). This lower remarriage rate is exacerbated when the wife
has custody of the children. Part of the reason for this disparity is that
a woman’s value on the marriage market tends to depreciate with time,
while her husband’s tends to appreciate (Cohen, 1995; Weitzman, 1985,
p. 27). In addition to the other problems, newly divorced women en-
counter tremendous obstacles performing their role as parents.4Studies of
4. For example, they must assume flexible employment in order to accommodate
their children’s emergencies (Blau and Robins, 1989).
Why Most Divorce Filers Are Women 129
their performance as parents prior to and after divorce reveal weaknesses
in consistency and ability to cope with the stress of single parenting (Heth-
erington et al., 1982; Hochschild, 1997; Wallerstein and Kelly, 1980).
Because of the financial and social hardships faced after divorce, it has
been commonplace, in the law and economics world at any rate, to as-
sume that husbands have at least instigated divorce (Parkman, 1992, p. 85;
Cohen, 1987, pp. 288–89). This position has also been supported by the
tidbit of information suggesting that male filing rates increased with the
introduction of no-fault divorce (Gunter and Johnson, 1978, pp. 572–73).
The standard view is that the increases in divorce rates brought about
by no-fault divorce were the result of husbands unilaterally absconding
with disproportionate shares of marital property (Cohen, 1995; Weitzman,
1985; Zelder, 1994). Yet women file for divorce more often than men. Not
only do they file more often, but some evidence suggests they are more
likely to instigate separation (Braver, Whitley, and Ng, 1993), despite a
deep attachment to their children5and the evidence that many divorces
harm children (Bianchi and McArthur, 1991). Because the connection be-
tween filing and initiation of breakup is important to our analysis, we
reproduce a table of data taken from the National Survey of Families and
Households (Sweet, Bumpass, and Call, 1988) (See Appendix).6Further-
more, divorced women in large numbers reveal that they are happier than
they were while married.7They report relief and certainty that they were
right in leaving their marriages (Reissman, 1990, p. 165).
5. Women more than men seem to bear the burden of their children’s suffering,
holding themselves responsible for the children’s emotional and physical well-being
(Whitehead, 1997, p. 63; Fuchs, 1988, p. 72).
6. Later we will supplement this qualitative appraisal with a strictly empirical one,
showing how filing that takes place immediately after separation (largely done by
women) reveals much more about the reasons for divorce than does filing after lengthy
separation.
7. This is not merely just what is reported; clinical studies show a lower preva-
lence rate of first-onset major depression for women than for men (Baruch, Barnett,
and Rivers, 1983, p. 261; Bruce and Kim, 1992; Kurz, 1995, pp. 188–89; Verbrugge
and Madans, 1985; Whitehead, 1997, p. 184). Men tend to get more health, sexual,
and economic (wage) benefits from marriage, regardless of the quality of the mar-
riage, than do women (Waite, 1995). For health benefits, see Schoenborn and Marano
(1988). Women get some psychological benefits from marriage that they do not receive
when single. However, divorced and separated women got higher marks for personal
autonomy and sufficiency as well as personal growth (Marks, 1996).
130 American Law and Economics Review V2 N1 2000 (126–169)
This fundamental puzzle (namely, that women on average willingly file
for divorce despite higher costs) suggests that the incentives for divorce
require a reexamination, that the forces affecting the net benefits from
marriage may be quite complicated, and that these forces may be asym-
metric between men and women. This paper considers women’s filing as
rational behavior, based on spouses’ relative power in the marriage, their
opportunities following divorce, and their anticipation of custody. An ex-
amination of recent filing behavior across four states reveals that certain
characteristics are excellent predictors of who files for divorce.
2. Theories of Filing
The presence of what economists call appropriable quasi-rents has long
been known to cause bargaining problems in relationships of all kinds
(Buchanan, 1983; Cohen, 1987; Klein, Crawford, and Alchian, 1978;
Muris, 1981). Because the concept of quasi-rents is so important to our
analysis, we go to some lengths to explain what it means in the con-
text of marriage and divorce. Formally, a quasi-rent is a value over and
above one’s opportunity cost or next best alternative. According to Klein,
Crawford, and Alchian (1978, p. 298), a quasi-rent “is the excess [of an
asset’s] value over its salvage value.” In the case of marriage, a quasi-rent
is excess value of a specific marriage over the value of the next best op-
tion of not being in this specific marriage. This next best option may be
remarriage, separation, or divorce, depending on the preferences and op-
portunities of the individual spouse. Clearly, since quasi-rents depend on
the value held by each spouse, each spouse has a different rent within the
marriage. In many marriages, spouses may reap larger or smaller quasi-
rents at different times. This is the situation explained by Lloyd Cohen
in his “Marriage, Divorce and Quasi-Rents” (1987), where wives receive
quasi-rents late in marriage and husbands early on.
The economic importance of quasi-rents stems from the fact that they
can potentially be held hostage or appropriated. To earn quasi-rents in any
relationship often puts one in a weak bargaining position because the rela-
tionship means more than any of the alternatives. This often strikes many
as counterintuitive. If one earns large rents, how can this be a bad thing?
Yet large rents stem from two sources, the value of the current relationship
and the value of alternatives. In the context of marriage, large quasi-rents
Why Most Divorce Filers Are Women 131
simply mean that alternatives to one’s specific marriage are poor com-
pared to the value of that specific marriage. For example, although the
current relationship may be poor, the alternative may be extreme poverty
or complete uprooting of a child, which is simply unacceptable to the
given spouse. Alternatively, the relationship may be in a bad state now,
but the spouse may feel that things will improve in the future. Those earn-
ing large rents want to maintain the existing relationship and are therefore
willing to sacrifice to do so. In fact, if they sacrifice up to the amount
of the quasi-rent, they are still better off in the current relationship than
the alternative. Herein lies the problem with quasi-rents: An exploitative
spouse can extract value from the spouse earning quasi-rents because that
person would rather give them up than leave.8
It should be noted that divorce itself is costly and still carries some
stigma. Divorce contains costs in the form of attorneys’ fees, harm to
children, financial losses, and even today the loss of the comfort of being
married. As a result, the divorce event (or process) provides a hurdle that
encourages people to remain married even though the union is marginal at
best. The marriages that eventuate in divorce are therefore those in which
at least one individual believes life is better after divorce in spite of these
costs.
Quasi-rents in marriage often arise from the outset (Wax, 1998) and
take on two specific forms that are manifested in at least two particular
types of divorces. First, quasi-rents may be appropriated within a marriage
through renegotiation of marriage shares (exploitation). Second, the quasi-
rents may be appropriated through divorce (appropriation). We examine
each of these in turn and focus on the cases that are consistent with higher
filing rates for wives.
2.1. Rent Exploitation During Marriage
Higher filing rates by wives may result from husbands’ overexploiting
quasi-rents accruing to the wives as they bargain ex post over the share
of marital gains. If the share is tipped too much in favor of the husband,
8. Quasi-rents have little to do with whether a marriage is “happy” or not. A happy
marriage may have no quasi-rents. Suppose Sam could marry Sally or Judy, either of
whom would make a perfect match. If Sam chooses Sally, he’s happy, but earns no
rents since Judy is a perfect substitute. Second, an unhappy marriage may still earn
quasi-rents. Marriage to one person may simply be the least bad option.
132 American Law and Economics Review V2 N1 2000 (126–169)
then the wife may perceive the divorced state as better because life in their
marriage is so hard (Kurz, 1995). Marriage is a relationship in which both
spouses are residual claimants and neither spouse “hires” the other. Al-
though most couples might marry with the intention that things will gen-
erally be split evenly, the inputs and outputs are different and “lumpy,
or unevenly distributed, so that perfectly delineated sharing is impossible.
However, the spouse with better opportunities outside the marriage can
often tilt the general share of outputs more in his favor and the share of
inputs more to the other partner. The forms these alterations can take are
endless. Husbands may reduce or cease housework, forcing the wives to
sacrifice too much of their leisure time to complete this work (Hochschild
and Machung, 1989; Parkman, 1998), or they may neglect parenting du-
ties, increase their private consumption at the expense of family goods,
and spend more time with friends than with the family. A spouse may
blatantly commit adultery or other traditional faults, and in the extreme,
this form of exploitation may evolve into an abusive situation in which
the husband takes advantage of the wife’s worse position through actual
or threatened force.
Wives may find themselves in this position more often than husbands
because they often make large specific investments when they have chil-
dren, and wives typically bear a disproportionate cost in rearing children.
Not only do children require time and effort, but also the physical changes
of childbearing, childbirth, and the sleepless nights of child rearing can
take a mental toll (lowering outside marriage opportunities). Because the
baby is completely dependent upon the mother, she loses bargaining power
relative to her husband because she can no longer devote “ideal worker”
days to the paid labor force (Menkel-Meadow, 1989, pp. 304–12; Sanger,
1992, p. 18; Silbaugh, 1996; Williams, 1991, pp. 1611–12). The differ-
ence between what a caregiving parent and a supporting parent earn makes
up the bulk of the so-called gender gap in wages (Fuchs, 1988, p. 72;
Jacobsen and Levin, 1995).9Thus Amy Wax and others argue that the
9. Fuchs concludes that women’s disproportionate responsibility for childcare pro-
vides the most powerful explanation of the difference in men and women’s earnings.
Although the gap between men and women’s wages closed by 7% between 1980 and
1986, Fuchs (1988, pp. 65–66) explains that the improvement largely was due to the
increased percentage of women workers who were born after 1946 and had fewer chil-
dren, suggesting that for each year out of the labor force, the caretaker permanently
loses 1.5% of lifetime earning capacity (Hadfield, 1993; Waite, 1995, p. 496).
Why Most Divorce Filers Are Women 133
labor market and the power derived from it cast a shadow over bargaining
within the marriage (Wax, 1998).10
The introduction of children into a marriage nearly always leads to
some renegotiation of marital roles.11 Couples may or may not anticipate
this, but when children arrive, a husband may try to renegotiate the mar-
riage deal in light of the poorer bargaining position now held by the wife
(Cohen, 1987; Fineman, 1995a; Stark, 1991). When he does so, the wife
may decide that a divorce is better than remaining married. Divorce, de-
spite its many shortcomings, allows the woman to exercise control over
household spending when she is awarded custody (Seltzer, 1996, 1998;
Lundberg and Pollack, 1993, pp. 989–90). If the court names her primary
custodian, she makes most, if not all, of the major decisions regarding the
child (American Law Institute, 1998, § 203[5]). As custodial parent, she
will be able to spend the money the husband pays in child support exactly
as she pleases—something she may not do during marriage (Lundberg
and Pollack, 1993, pp. 992–93).12 Finally, although the court will usually
have ordered visitation, she can exert some control over her former hus-
band by regulating many, although not all, aspects of the time he spends
with the child (Eichelberger v. Eichelberger, 1986; American Law Insti-
tute, 1998, § 2.20, Reporter’s Notes, pp. 377–89; Levmore, 1998). In the
extreme, she can even “poison” the child against the father (Fay, 1989;
Lobsenz, 1971).
The argument that wives file for divorce to escape bad marriages may
hinge on a “mistake” made by the husband. In at least some cases, had he
not exploited the good will of his wife too much, she might be unhappy
but willing to stay in the marriage. Alternatively, once she had decided to
leave, the husband could ease up on his demands at home and settle on
10. Regan (1992, pp. 65–66) suggests a variety of women why women continue to
earn significantly less than men of comparable education and training. See also Starnes
(1993).
11. Wallerstein and Blakeslee (1995, pp. 70–73) discuss how these changes in family
structure influence marriages.
12. Of course, the non-resident parent may not always pay the support ordered
(Brinig and Buckley, 1998a, pp. 420–23; Lerman, 1989, p. 222; Pulkingham, 1994,
pp. 73–97).
134 American Law and Economics Review V2 N1 2000 (126–169)
an arrangement that would, again, convince his wife to stay. Why, then,
is the husband either unable or not willing to persuade his wife to stay?13
In some cases, by the time he realizes there’s a problem, it is likely too
late. So much of the wife’s trust has eroded that no amount of renegoti-
ating will save the marriage. In other cases, the breakup may be caused
by a large asymmetry in the value placed on children by the mother and
father. This may be for any number of reasons. Those commonly given
include assumptions that women may be socially (Chodorow, 1978, p. 7;
Rich, 1986; Sanger, 1996) or even genetically (Rossi, 1977) predisposed
to be more nurturing than men (Bartlett, 1988; Fineman, 1995b, pp. 72–
73).14 She may also have spent so much more time with the children that
she has become more attached, the same way that a person may acquire
an ever greater taste in classical music (Becker, 1993, p. 400; Becker and
Murphy, 1988).
For example, consider the presumably rare case where a nurturing
woman marries a man with few paternal interests beyond being a bio-
logical father. As the wife’s stake in the marriage increases due to moth-
erhood, this husband may exploit the situation to the fullest. If the wife
decides to file for divorce to gain more control over household resources,
the husband may be unwilling to modify his behavior because in his eyes
he will have achieved his goal of being a father (Mullen v. Mullen, 1948).
Failure to renegotiate results from a fundamental difference in the value
each spouse puts on his or her respective parental role.
An extension of this argument is found where the husband goes so far
in exploiting the quasi-rents of his wife that he explicitly violates the mar-
riage vows or state laws. Wives, of course, may also break the marriage
contract. Regardless of who breaches, committing adultery, physical and
mental abuse,15 and desertion are all cases where bargaining to renegotiate
13. This “Coasian bargaining” (Coase, 1960) is what economists would expect in a
situation where the husband’s gains from marriage were so great that he could com-
pensate the wife for her desire to leave (Kelman, 1979, p. 688 and note 51).
14. Leving (1997) and Czapanskiy (1991) disagree.
15. We are confining this point to situations in which the wife has decided to per-
manently leave the abusive relationship. Obviously many abused wives do reconcile
with their husbands, and some never leave.
Why Most Divorce Filers Are Women 135
the marriage is not very likely to succeed over the long run, because mu-
tual trust and respect may be destroyed (Gaughan, 1981; Lerman, 1984).16
2.2. Rent Appropriation Through Divorce
A second means by which quasi-rents may lead to divorce is through
the outright confiscation of a specific investment in the marriage. As we
noted earlier, quasi-rents, or large differences in the value of the marriage
versus the next best alternative, often arise after one spouse has made a
specific investment in the marriage; say, by helping the other earn a degree.
When the other partner controls this investment, he or she may be able
to leave the marriage and take the investment along (Weitzman, 1985,
p. 109). This is particularly true when the investment is in the human
capital of the spouse who leaves, as is often the case with education
(Brinig, 1997; Mahoney v. Mahoney, 1982; Parkman, 1995; Weitzman,
1985, p. 141).17
Possibilities for appropriating marital assets also arise when there are
large differences in the timing of investments in the marriage. For exam-
ple, in a traditional marriage where the wife makes most of her (human)
capital investments in the marriage up front, as she “takes time off” from
a career to bear children, the husband is able to enjoy most of these in-
vestments and then to leave just when his major contributions are about to
begin (O’Brien v. O’Brien, 1985; but see, e.g., Graham v. Graham, 1987;
Cohen, 1987).
This opportunistic appropriation of quasi-rents (or making off with
marital assets) through divorce has the opposite implications from the
first type of problem mentioned. With rent extraction during marriage, the
spouse who has been exploited during the marriage should be the one
who files. With rent appropriation through divorce, the spouse who can
16. Of course, even in such cases, many spouses do reconcile, some of them per-
manently. In order to avoid scandal, some adulterous spouses may cede tremendous
amounts of marital power. In an unfortunately large number of abuse cases, although
renegotiation is promised and marital relations resume, the power imbalance remains
the same, and abuse recurs. Although historically desertion would have been the typ-
ical occasion for women’s filing, contemporary wives would seem particularly likely
to file more often than their husbands in abuse cases (Kurz, 1995). Fagan and Browne
(1994) recently calculated the percentage of family violence in which women were the
victims.
17. The classic case of this type is the “medical school syndrome,” where a fresh
doctor leaves a supporting spouse once medical school is finished.
136 American Law and Economics Review V2 N1 2000 (126–169)
carry off specific marital investments that the other spouse has sunk into
the marriage is the one who leaves (and, presumably, files). In this con-
text, filing for divorce is a method of acquiring a disproportionate18 share
of the marital assets. For most financial investments, wives are vulner-
able to appropriation because husbands have traditionally been the first
to finish their formal education or obtain vocational training. However,
husbands can also make specific investments up front and can therefore
become vulnerable as well. Next to children, one of the most important
forms of early investment by a couple is in education. When one party in-
vests in the education of the other early on, the benefits (rents) are earned
once the high-human-capital spouse starts working. As a result, however,
the spouse with the lower income may fall victim to the opportunistic di-
vorce. Hence, for example, a wife may leave her husband after he has put
her through law school.19
2.3. Custody
Until now our focus has been on the role of quasi-rents in a marriage.
Individuals file when filing stops them from being exploited within the
marriage or when filing allows them to exploit the other spouse. Although
quasi-rents in marriage can arise from a number of specific investments,
children are likely to be the most serious and common source. In addi-
tion to this, children are often the most valuable assets in a family. As
such, custody is often a critical issue in divorce filing behavior. Property
distribution laws that might allow one spouse to appropriate marital invest-
ments apply to marital property, not children. For children, the standard
isn’t strictly measured by investment or even fairness, but by the “best in-
terests of the child” (Altman, 1996). Time spent with children or, even
more, money lavished upon them does not necessarily equate to what will
be best for them when parents no longer live together.
Because of the differences in attachment we’ve discussed earlier, hav-
ing a child in itself makes wives less likely to file for divorce. The presence
of children also makes divorce less likely in the first place, as couples
stay together “for the sake of the children” (Lacey, 1992; Scott, 1990).
18. Disproportionate, that is, compared to what the spouse had invested in the
marriage.
19. See Srinivasan v. Srinivasan (1990) (wife exploited husband through graduate
school and a lengthy probationary faculty period).
Why Most Divorce Filers Are Women 137
However, given the presence of children, it is expectations of custody
that drive divorce filing. By making a preemptive filing, the wife may
be able to secure rights such as child or spousal support that require
court enforcement.20 When the wife files, she is often given temporary
custody of the children. Temporary custody, like possession, tends to be
“nine-tenths of the law” and plays a role in the assignment of permanent
custody, especially when the divorce does not occur for some time.21
When a spouse expects custody, filing may act as an appropriation of
marital resources. For wives versus husbands, children are an unusual as-
set because working men are unlikely to receive substantial child support
from their wives. Children may hurt the earning potential of wives, but
this very fact makes them more likely to seek custody. Mothers are less
employable because they have spent the most time with the children, but
because they have spent the most time, they probably have closer rela-
tionships with them. Some women may also feel that by making career
sacrifices, they have “earned” custody. Thus, although the presence of chil-
dren, and especially more than one child, may be a damper on a wife’s
filing, realizing that the marriage is very troubled, she may nevertheless
file to secure custody (Grillo, 1991, p. 1547).
3. Filing and the Welfare of Wives
A spouse may thus file for divorce because he or she is escaping an ex-
ploitative partner, leaving the marriage with the bulk or all of its enhanced
human capital, or attempting to establish custody over children. Keeping
in mind that wives are more likely to file for divorce, each of these reasons
for filing has different implications for the welfare of wives and different
implications regarding the policy recommendations for divorce law. Wives
who file in an attempt to flee an exploitative relationship resulting from
20. Again, this makes the most sense in historical periods when husbands owned
all the assets, and wives might not even be able to establish their own domiciles
without court orders (Brinig and Carbone, 1988, pp. 863–64). A non-biological party
unsuccessfully sought child support without such an arrangement (Larson v. Diveglia,
1997.)
21. Analogously, temporary child support is now being made under exactly the
same guidelines as permanent support (Va. Code Ann., 1998). Strategic motivations
would have been particularly important for wives in historical periods when they lacked
resources themselves.
138 American Law and Economics Review V2 N1 2000 (126–169)
the nurturing asymmetry that often arises between them and their hus-
bands are clearly made better off by divorce and should by virtually all
accounts be allowed to leave the marriage. Reformers who feel these cases
of physical or emotional abuse predominate may consider ways of discour-
aging the exploitative spouse from profiting from the bad behavior, such
as punitive alimony or property shares (Brinig and Crafton, 1994), and,
if exploitative behavior dominated, might counsel law reformers to make
divorce less difficult (or less painful), with transfer payments to mitigate
any financial hardship (Brinig, 1997, pp. 116–18).22 Furthermore, govern-
ment should emphasize improving marriage rather than making divorce
difficult.
However, wives (and husbands) who file for divorce in order to ap-
propriate marital assets such as enhanced earning capacities are better off
after divorce, but only at the expense of the other spouse. In this case, the
opposite recommendation for divorce law is forthcoming. When divorce
is used to exploit the spouse remaining behind, divorce should be made
more difficult to obtain23 in order to protect the specific investments of
each spouse (Cohen, 1987; Ellman, 1989).
If it is custody outcomes that most influence divorce filings, changes
in custody rules (or their likely outcomes) rather than in divorce grounds
should most shape the patterns of both marriage and divorce (Brinig and
Buckley, 1998a).24 In particular, this could take the form of a presumption
of joint custody or a rule that made post-divorce patterns mirror pre-
separation time shares as closely as possible, with sole custody only in
cases where one party can show the other parent unfit.25 An appropriate
custody rule mitigates the incentive for one-party filing for the purpose of
22. Some would say to stigmatize the exploiter as well (Golden and Taylor, 1987,
pp. 12–13).
23. Apparently this is the view of the law and economics writers who feel that those
leaving are by and large men.
24. Chapter 2 of the American Law Institute Marital Dissolution project (1998),
which would substantially change substantive child custody rules, may well have this
effect.
25. The American Law Institute (1998) proposal rules can be found in Section
2.02(e) (continuity of existing parent-child attachments) and 2.09(1), which provides
that unless otherwise resolved by agreement or manifestly harmful to the child, “the
court should allocate custodial responsibility so that the proportion of custodial time
the child spends with each parent approximates the proportion of time each parent
spent performing caretaking functions for the child prior to the parents’ separation.”
Why Most Divorce Filers Are Women 139
gaining unilateral control over the children and, to the extent both parents
remain involved through visitation or child support, the other spouse.
The question is, which type of issue drives most divorces? We now
turn to an empirical analysis of divorce filing to sort out these theories
and conclude that while we see exploitative, appropriative, and custody-
related filing behavior, the custody patterns are the most important. We
also note that no-fault (unilateral) divorce laws apparently do two things.
They increase divorce filing rates generally (Allen, 1992a; Brinig and
Buckley, 1998b; Friedberg, 1998), and they increase the percentage of
women who file. The fact that women, more than men, take advantage
of the easier exit suggests that a return to a fault-based system will not
advance women’s goals.
4. Testable Implications
There are three major individual characteristics that we can use to test
our theory that filing behavior is driven by the two forms of quasi-rent
appropriation outlined above. First, there are differences in age and age at
marriage that generate specific quasi-rents for men and women. Second,
the presence of children and their number create asymmetric quasi-rents
that we can analyze. Third, there are differences in human capital and,
in mixed-race couples, race between husbands and wives. In addition to
these characteristics, a number of testable implications arise from specific
grounds for divorce, information on the length of separation, and aggregate
county-level demographic features.
The hypotheses we develop are tested through data obtained from all
the divorce certificates for 1995 (more than 46,000 with complete data)
from Connecticut, Virginia, Oregon, and Montana.26 This data set is un-
usually good for several reasons. First, it is large and inclusive: divorce
law requires that people file where they are domiciled (Williams v. North
Carolina, 1942), so virtually all the years’ divorces in the jurisdictions
used are included.27 The data are relatively accurate, since they are com-
26. These states were selected based on the availability of data. Although all states
except Louisiana collect divorce statistics, very few keep records of who files.
27. The exceptions would be spouses who left the state of their marriage to be
divorced elsewhere or those who temporarily moved into one of the jurisdictions we
are considering.
140 American Law and Economics Review V2 N1 2000 (126–169)
piled by judicial personnel from facts alleged by the parties and proven
based upon sworn testimony in court hearings. The data gathering pro-
cess has been standard since 1960 because the National Center for Health
Statistics has prepared national statistics based on these submissions.28
There are no obvious incentives for judicial personnel to exaggerate or
distort any of these measures.
Table 2 contains a list of definitions of variables, while Tables 3 and 4
list logit regression results from the four states. (A logit regression esti-
mates the equation that will best produce the actual distribution between
0 and 1 for a two-option dependent variable [Maddala, 1983, pp. 59 et
seq.] [here, which spouse is the plaintiff].) The dependent variable in all
regressions is 1 when the wife files for divorce. We now turn to each set
of predictions in turn.
4.1. Age and Age at Marriage
In a “traditional” marriage where the wife marries young and remains
in the home, most of the appropriable quasi-rents are earned by the wife,
and this puts her in a vulnerable position. In other words, she has in-
vested more than the husband in the relationship at the beginning and
has the most to lose if it ends. The longer these types of marriages last,
the more the husband becomes advantaged, since wives are more likely
to stay out of the labor force to perform caretaking and other household
services (Fineman, 1995a)29 and will perform such tasks longer. Further,
when wives are older, they are relatively unlikely to remarry following di-
vorce. Husbands, whose earning capacities are enhanced by marriage even
if their wives do not put them through school, should be more likely to
appropriate through divorce in these cases because most of the wife’s con-
tribution is up front. More subtly, the circumstances in which the spouses
married reveal how much can be carried away at divorce. The woman who
marries very young is unlikely to have a healthy earning capacity (and is
more likely to have married because of an unplanned pregnancy). Hence,
in these circumstances, husbands are more likely to opportunistically file.
If the wife were to file, she would clearly be leaving a bad marriage.
28. The completed data set used here has not been compiled since 1995 because
funding for the National Center for Health Statistics was reduced. Since that time, raw
divorce rates have continued to be reported. Monthly vital statistics reports contain
estimates from samples. For methods, see, for example, Technical Notes (1996, p. 17).
29. They are less likely to remarry (Bumpass, Sweet, and Castro Martin, 1990).
Why Most Divorce Filers Are Women 141
Table 2. Definition of Variables
Variable Definition
PLAINTIFF 1 if wife.
W-MARR-AGE Ages of husband and wife at the time of marriage.
H-MARR-AGE
WAGE-YEARSM Wife’s age times years married.
HAGE-YEARSM Husband’s age times years married.
YEARSM Number of years married until divorce.
CHILD18 Number of children under 18.
NCHILDW Number of children awarded to wife.
NCHILDH Number of children awarded to husband.
NCHILDJ Number of children awarded joint custody.
RELED Husband’s years of education minus wife’s years of
education.
WEDUC Years of education for the wife.
WWHITE The wife in the couple was white.
(CT, OR, VA only)
HNUMARR Number of husband’s marriage being dissolved.
(Oregon only)
WNUMARR Number of wife’s marriage being dissolved.
(Oregon only)
NOFAULT State law makes fault irrelevant for divorce.
DIVRATE County divorce rate.
POVERTY Number of people in poverty divided by population.
POPDENS Number of people per square mile in county.
PCPI Per capita personal income for the county.
CRUEL The divorce was granted on grounds of cruelty.
(Virginia only)
SEPLENGTH Length of time the parties were separated prior to
(Oregon only) the divorce.
On the other hand, wives who hold professional positions or otherwise
work outside the home are less likely to have quasi-rents appropriated
by their husbands. Women who were older at the time they married will,
independent of their education, be more likely to file for divorce because
their earnings were higher before they married and they are less likely
to have married because they were pregnant.30 They can take advantage
of exit options if not given enough voice during the marriage (Brilmayer,
1989; Hirschman, 1970).
30. According to Becker and his coauthors, a premarital pregnancy is one of the
strongest indicators of marital instability because the woman in question does not have
the leisure to search for the ideal mate (Becker, Landes, and Michael, 1977; Weiss and
Willis, 1997).
142 American Law and Economics Review V2 N1 2000 (126–169)
We use several variables to isolate and control for age and age at mar-
riage. The coefficients for the variables W-MARR-AGE, H-MARR-AGE,
WAGE-YEARSM, HAGE-YEARSM, and YEARSM (see Table 3) are
consistent with the opportunistic divorce scenario as laid out by Lloyd
Cohen (1987). From Table 3 we see that the older a woman is at the time
of marriage, the more likely it is that she files for divorce. Even holding
age at marriage constant, WAGE-YEARSM is negative, suggesting that
Table 3. Logit Regression Results—Women as Petitioners, 1995: Dependent
Variable =Plaintiff
Variable All states Three states Virginia Oregon
AGE VARIABLES:
W-MARR-AGE 0.0177 0.0147 0.0137 0.0151
(5.3177)∗∗ (4.4380)∗∗ (3.050)∗∗ (1.7962)
H-MARR-AGE 0.0173 0.0151 0.0155 0.0254
(5.4535)∗∗ (4.7868)∗∗ (3.5972)∗∗ (3.1825)∗∗
WAGE-YEARSM 0.0019 0.0019 0.0017 0.0020
(7.0133)∗∗ (6.563)∗∗ (4.7080)∗∗ (2.4841)∗∗
HAGE-YEARSM 0.0025 0.0024 0.0020 0.0028
(9.2940)∗∗ (8.5562)∗∗ (5.6911)∗∗ (3.4308)∗∗
YEARSM 0.0384 0.0343 0.0243 0.0381
(6.1570)∗∗ (5.2958)∗∗ (2.8242)∗∗ (2.0923)∗∗
CHILD VARIABLES:
CHILD18 0.0565 0.0621 0.0001 0.0386
(5.366)∗∗ (5.7659)∗∗ (0.0000)∗∗ (0.9881)∗∗
NCHILDH 0.5454 0.5371 0.6859 0.7673
(30.6433)∗∗ (28.9189)∗∗ (10.3143)∗∗ (12.7164)∗∗
NCHILDW 0.4780 0.4884 0.3334 0.5149
(34.89)∗∗ (33.9654)∗∗ (6.0704)∗∗ (11.9904)∗∗
NCHILDJ 0.1307 0.1252 0.1461 0.0205
(9.0465)∗∗ (8.1261)∗∗ (2.5093)∗∗ (0.4382)∗∗
HUMAN CAPITAL VARIABLES:
RELED 0.0815 0.0865 0.076 0.2173
(33.7153)∗∗ (33.5112)∗∗ (27.8460)∗∗ (14.5573)∗∗
WEDUC 0.0030 0.0025 0.0064 0.0207
(1.2081) (1.0099) (2.3483)∗∗ (1.3342)
WWHITE 0.2021 0.1709 0.1906
(6.8051)∗∗ (4.9084)∗∗ (1.7263)∗∗
HNUMMARR 0.0281 0.004 0.0930
(1.4670) (0.1466) (2.0662)∗∗
WNUMMARR 0.0562 0.0515 0.0420
(3.0718)∗∗ (1.9912)∗∗ (0.9975)∗∗
Why Most Divorce Filers Are Women 143
Table 3. Continued
Variable All states Three states Virginia Oregon
AGGREGATE VARIABLES:
NOFAULT 0.1277 0.0889
(3.0988)∗∗ (1.7251)
DIVRATE 0.0075 0.0062 0.0349 0.0250
(1.0376) (0.8243) (2.5123)∗∗ (2.5814)∗∗
POVERTY 0.0000 0.0000 0.0068 0.0000
(3.3326)∗∗ (3.3486)∗∗ (3.0375)∗∗ (0.6678)
POPDENS 0.0000 0.0000 0.0000 0.0003
(4.0029)∗∗ (2.7098)∗∗ (4.0073)∗∗ (2.1023)∗∗
PCPI 0.0000
(2.9165)∗∗
FILING/INITIATING: 0.0380
SEPLENG (3.0067)∗∗
BAD MARRIAGE: 1.5604
CRUEL (5.9783)∗∗
Constant 0.4213 0.2182 0.0209 0.9688
(6.0238)∗∗ (2.8502)∗∗ (0.1631) (3.7144)∗∗
Correct Estimations 66.43 66.46 64.91 71.181
n46547 43329 26067 7234
aAll states = Connecticut, Virginia, Oregon, and Montana.
bThree states = Connecticut, Virginia, and Oregon.
*Significant to .1 level.
**Significant to .05 level.
wives who have been married a long time are less likely to file for di-
vorce. Taken together, they say that women who marry young and who
have been married a long time are not likely to file for divorce (Garfinkel
and McLanahan, 1986).31 Our results corroborate the suggestion of Co-
hen and others that older women at the time of divorce (as opposed to
women who were older at the time of marriage) are less likely to remarry
and more likely to have made career sacrifices that will be very costly if
the marriage ends in divorce (Bumpass, Castro-Martin, and Sweet, 1991;
Clarke, 1995; Sweeney, 1997). These divorces, then, are filed by husbands
and suggest that husbands engage in exploiting quasi-rents through divorce
by leaving their marriages after they have reaped the benefits of the wife’s
sacrifices and before they must contribute their enhanced earnings.
The data also reveals that opportunistic divorces apparently work in re-
verse as well. The coefficients for H-MARR-AGE and HAGE-YEARSM
31. Premarital fatherhood apparently hurts men as well (Krantz, 1988).
144 American Law and Economics Review V2 N1 2000 (126–169)
are the opposite signs to those corresponding to the wife. Husbands who
marry late are, like their wives, more likely to have accumulated sub-
stantial human capital. As they become older at the time of marriage,
independent of the length of the marriage, they are more likely to file.
Also, men who have been married a long time and who married younger
Table 4. Logit Regression Results—Women as Petitioners, Special
Cases, 1995: Dependent Variable =Plaintiff
Oregon Oregon
Long Short
Variable Blacks Separations Separations
AGE VARIABLES:
W-MARR-AGE 0.0047 0.0055 0.0168
(0.4651) (0.2098) (1.8699)
H-MARR-AGE 0.0067 0.0260 0.0271
(0.7154) (1.0316) (3.1900)∗∗
WAGE-YEARSM 0.0004 0.0007 0.0024
(0.6117) (0.3748) (2.5654)∗∗
HAGE-YEARSM 0.0007 0.0022 0.0031
(1.0084) (1.1806) (3.3935)∗∗
YEARSM 0.0251 0.1013 0.0356
(1.2269) (2.0987)∗∗ (1.7107)
CHILD VARIABLES:
CHILD18 0.1334 0.1309 0.0557
(3.3468)∗∗ (0.8939) (1.3436)
NCHILDH 0.4680 0.8175 0.7705
(6.8645)∗∗ (3.4174)∗∗ (12.1488)
NCHILDW 0.5283 0.3862 0.5340
(11.1380)∗∗ (2.2581)∗∗ (11.8280)∗∗
NCHILDJ 0.0702 0.0220 0.0173
(1.1240) (0.1145) (0.3557)
HUMAN CAPITAL VARIABLES:
RELED 0.1005 0.2413 0.2134
(14.1173)∗∗ (5.9309)∗∗ (13.2361)∗∗
WEDUC 0.0070 0.0468 0.0145
(0.8981) (1.1833) (0.8535)
WWHITE 0.3210 0.1658
(1.3711) (1.3139)
WNUMMARR 0.0367 0.0253 0.0498
(0.4824) (0.2110) (1.1033)
HNUMMARR 0.1106 0.0156 0.1075
(1.4867) (0.1245) (2.2117)∗∗
Why Most Divorce Filers Are Women 145
Table 4. Continued
Oregon Oregon
Long Short
Variable Blacks Separations Separations
AGGREGATE VARIABLES:
NOFAULT 0.8486
(0.9081)
DIVRATE 0.0766 0.0113 0.0300
(2.2721)∗∗ (0.4192) (2.8623)∗∗
POVERTY 0.0000 0.0000 0.0000
(1.4511) (0.3615) (2.2487)
POPDENS 0.0000 0.0001 0.0003
(2.1093)∗∗ (0.2512) (2.2487)∗∗
FILING/INITIATING: 0.0227 0.1122
SEPLENGTH (1.0230) (2.5078)∗∗
Constant 0.0545 1.2948 0.9802
(0.2184) (1.9094)∗∗ (11.5371)∗∗
Correct Estimations 66.34 67.61 71.90
n4759 985 6249
*Significant to .1 level.
**Significant to .05 level.
are less likely to file. These results again are consistent with individuals’
filing when they have less specific attachment to the marriage and more
non-marriage social capital (Nock, 1995, 1999). This result is interesting
because the relative magnitudes of the coefficients between husbands and
wives are quite similar, suggesting that wives are just as opportunistic as
husbands in this regard.
The findings for the variable YEARSM are also consistent with the
opportunistic divorce, where husbands leave their wives after extracting
the value of the wives’ earlier investments. The negative sign means that
men are more likely to file in long-term marriages. From the woman’s
point of view, divorcing after lengthy marriages, other things being equal,
means leaving after making substantial sunk investments in the relation-
ship (Starnes, 1993)32 and before reaping all the benefits of the husband’s
greater earning capacity (Wax, 1998).
32. Women report a U-shaped pattern of happiness with their marriages: prospec-
tively, women seem to find solving marital disputes more difficult over time (Vaillant
and Vaillant, 1993).
146 American Law and Economics Review V2 N1 2000 (126–169)
4.2. Children
Children play several critical features in our model. First, they cre-
ate quasi-rents for the mother—increasing the reliance she has on the
husband’s income and, to the extent she is very concerned about the chil-
dren’s welfare, the long-term costs of divorce—and as a result contribute
to the mother’s not filing for divorce. This effect should become stronger
the more children that are present, since this implies even more time out of
the workforce. Numerous children also dim chances for remarriage. Given
at least one child, as the number of children increases, husbands should
therefore be more likely to file. Second, however, children are most often
the most valuable assets in a marriage and if there is trouble in a marriage
and the wife anticipates custody if she files, then she may file to establish
a claim to the children. Given that husbands are almost universally in the
full-time workforce, this is an option currently nearly exclusively avail-
able to wives. Hence, we would predict that wives will tend not to file as
often when children are present as when they are not, but, given children,
will file more often if they anticipate custody. Because the custody results
are so significant, we discuss possible reasons for our findings following
this more general section.
The variable CHILD18 is negative and significant, suggesting that the
presence of minor children reduces the probability of women filing for
divorce. This is consistent not only with the common observation that
mothers are more attached to children (Fuchs, 1988, p. 72) but also with
our theory of opportunistic divorce. As previously mentioned, children
constrain the newly single woman’s opportunities in the labor and re-
marriage markets (Sweeney, 1997)33 and thus raise the quasi-rents of the
existing marriage. The children also create incentives for their mother to
stay in the relationship to protect them from the risks of divorce (Brinig
and Buckley, 1998a).
The custody variables are all consistent with the notion of appropriation
divorces. That is, the person who anticipates custody is the one who files
for divorce. This makes sense since other property rules (if custody law is
considered a property rule [Woodhouse, 1992]) may well be better defined,
33. If a dummy variable is used to indicate the presence of children, rather than
the number of them, the coefficient is positive and significant: women file more. Other
coefficients do not change in sign or significance. Presumably the foregone career
opportunities increase as the number of children grows. Table available from authors.
Why Most Divorce Filers Are Women 147
and children are usually the greatest asset, or product, of a marriage.34 Di-
vorce without custody means giving up a large part of the joy of being a
parent-while continuing the financial responsibility for the child (Blanken-
horn, 1995, pp. 149–70; Fay, 1989; Goldberg, 1977, p. 48). The interest-
ing feature of the custody variables (NCHILDW and NCHILDH) is how
large they are. These variables dominate the regressions and are com-
pletely robust to changes in samples. Despite neutrality in the custody
laws, it remains true that judges are inclined to award children to women
(Garrison, 1996; Pearson and Luchesi Ring, 1983, pp. 718–23). Today,
those mothers who are not deserving of custody are likely to have other
problems—alcoholism, mental illness, or adultery—that would also affect
the quality of the marriage from the husband’s perspective (Cahn, 1997;
Sanger, 1996).
The coefficient for joint custody is inconsistent in terms of sign and
significance across the different samples of Table 3. This is consistent with
our model: when there is no clear assignment of wealth or custody at di-
vorce, there is no systematic filing behavior.35 On the one hand, women
might feel that sharing custody is logistically hard, that it does not reflect
the allocation of the parenting work done during the marriage, or that
it results in a loss of face (Bryan, 1997, p. 32; Grillo, 1991, p. 1547).
Husbands might be more likely to feel that divorce would not be as
painful, because they could still play major roles in the children’s up-
bringing (Arditti, 1992; Emery et al., 1994; Seltzer, 1991). On the other
hand, the reduction of the costs of divorce for children (both financial,
through increased adherence to child support orders [Brinig and Buck-
ley, 1998a; Seltzer, 1998], and psychological, because children do better
if they have substantial contact with both parents [Aquilino, 1994; Emery
et al., 1994; Weiss and Willis, 1993; Zill, 1993]) might mitigate the wife’s
ambivalent feelings about whether or not to divorce.
34. If this is a point that needs citation, see Becker (1991, p. 56).
35. See, for example, Va. Code Ann. (1992), defining joint custody as either (i) joint
legal custody where both parents retain joint responsibility for the care and control of
the child and joint authority to make decisions concerning the child even though the
child’s primary residence may be with only one parent, or (ii) joint physical custody
where both parents share physical and custodial care of the child, or (iii) any combi-
nation of joint legal and joint physical custody which the court deems to be in the best
interest of the child.
148 American Law and Economics Review V2 N1 2000 (126–169)
4.3. Human Capital and Race
If filing reflects opportunistic behavior, the spouse with the better op-
tions outside the marriage should be the one that generally files for di-
vorce. Two variables that we can use to proxy these outside opportunities
are race and the relative education of the spouses. Given that whites still
earn more than other races and that white wives earn more than black
wives relative to white and black men, we would predict that white wives
should be more likely to file than their husbands. In a black marriage,
the wife’s earning capacity is closer to her husband’s, and so black wives
should file less frequently than white wives. Second, we would predict
that when the wife has more education than her husband, then again she
should be more likely to file. As a woman’s earning capacity increases
relative to her husband’s, it may be in her interest to seek out another
spouse more equal in ability and earning power who will simply be a bet-
ter companion or more comfortable with her high ambitions for herself
(Sweeney, 1997).36
Perhaps most consistent with the opportunistic divorce is the variable
for relative education, RELED. The more educated of the two spouses
will be in a better position and therefore be more likely to file. This dif-
ference in education lowers the quasi-rents from marriage for the educated
spouse because the education is likely marketable (Becker, 1991; Weitz-
man, 1985), and transfers well into another relationship. If the wives are
highly educated (WEDUC), they should be able to support themselves
well outside of marriage and therefore lose less by divorcing (Bianchi
and Spain, 1996; Manser and Brown, 1980). A higher level of education
for wives would not be consistent with a greater need to file to secure
pendente lite support, one of the traditional explanations for women’s fil-
ing. In addition to this, we see in several regressions that WWHITE is
highly significant. Again, this is consistent with the idea that individuals
file for divorce when they have better options outside marriage.
36. Women with high educational achievement are more likely to remarry (Chiswick
and Lehrer, 1990), as are women with high earnings (Glick and Lin, 1987). Thus, such
a woman would follow Becker’s strategy of assortative mating (Becker, 1991, pp. 109–
16; Allen, 1992b).
Why Most Divorce Filers Are Women 149
4.4. Legal and Other Factors
Two of the states in our sample (Virginia and Connecticut) still use fault
grounds as well as no-fault grounds for divorce. Data including grounds
for divorce are available only for Virginia, however. These underlying
behaviors can explicitly be interpreted as actions to exploit rent in a mar-
riage. When one spouse beats another, commits adultery, or engages in
another form of cruelty and expects the marriage to continue, then this
spouse is attempting to extract quasi-rents from the other. In this case it is
clear that the victim should be the one filing for divorce and that this is di-
rect evidence of filing to flee an exploitive marriage.37 We can expect that
not all couples experiencing marital violence will file using this ground.
First, not all will divorce. Second, many of the spouses who would have
filed on cruelty grounds will bargain for financial concessions and will
actually result in divorces granted on the no-fault separation ground.
In the individual Virginia regressions, a dummy variable was added
for divorces granted on grounds of cruelty. Examination of the Virginia
column in Table 3 shows that some women take advantage of the fault
grounds for cruelty.38 The variable CRUEL is not only significant but
also is quite large. In fact, wives account for virtually all of the filings
under this ground. This finding lends some support to the hypothesis that
at least some women file to escape bad marriages (Fagan and Browne,
1994). Surprisingly, however, these cruelty divorces only equal about 6%
of all Virginia divorces.39
Another legal variable of interest is whether or not a state has a no-fault
divorce law. No-fault divorce has increased the chance of opportunistic di-
vorces because a given spouse can unilaterally leave the marriage (Brinig
and Crafton, 1994; Parkman, 1992). However, both spouses can behave
opportunistically. Hence, despite its importance, we can make no predic-
37. For an extended description of divorce and alimony history, see Courson v.
Courson (1957).
38. More women obtained desertion-based divorces as well; adultery cases were
approximately evenly split between men and women.
39. Going through individual Fairfax County divorce records filed in 1995, Brinig
read the first 130 files (by date). In those, she found seven in which the wife had
originally asked for a divorce based upon cruelty but in which the final grounds were
separation (the no-fault ground) in each case. Eight plaintiffs (about evenly men and
women) asked for divorces based upon adultery, again amending in each case to the
no-fault ground.
150 American Law and Economics Review V2 N1 2000 (126–169)
tion on the sign of this variable. On the one hand, wives are more likely
to file when a state has a no-fault law perhaps because they are fleeing
bad, exploitive marriages. For this reason, feminist writers are particularly
concerned with the potential cost of a return to fault-based divorce (New-
mark et al., 1995; Singer, 1989). Conceivably, women trapped in unhappy
marriages who might be penalized by leaving (through losing the divorce
case or through lowered expectations of alimony or property) would have
been able to extract themselves under a no-fault system. On the other
hand, others have argued that no-fault divorce has led to huge transfers of
wealth from wives, as husbands have been able to take particular advan-
tage of the law. In addition, husbands have argued that wives have been
able to exploit their husbands by taking the children with them.
The no-fault variable (coded 1 for Montana and Oregon and 0 for Vir-
ginia and Connecticut) was positive and significant, supporting the theory
that bare restrictions on exit from marriage would be particularly costly
to women. This result is particularly interesting because it suggests that
wealth transfers from wives to husbands were not the only or necessar-
ily the most important result of the switch to no-fault divore, as implicitly
suggested in much of the law and economic writing on divorce.40
4.5. Aggregate Variables
In addition to these legal variables, we have access to a number of
county-level aggregate variables. The most important and most studied of
these is the divorce rate. Friedman and Percival (1976) noted that women
tended to file more as divorce became more common, and the same re-
sult was reached for the more recent era by Gunter and Johnson (1978).
When there are more divorces, the cost of divorce decreases in terms of
social stigma (Brinig and Buckley, 1998b; Thornton, 1985), and a higher
divorce rate also lowers the sense of difference between being a divorced
40. However, it must be kept in mind that we are only testing this using four states,
none of which have fault laws that resemble the standard fault laws of a generation
ago, since even fault-retaining states such as Virginia and Connecticut allow divorce
after no-fault separation periods. Furthermore, none of these states (and, in fact, no
modern states) base property division on title, in which most of the transfer of wealth
took place (Allen, 1990). The no-fault state rates in our study were Oregon, .674,
and Montana, .651. Connecticut and Virginia, which retain fault, had .669 and .601,
respectively.
Why Most Divorce Filers Are Women 151
person and everyone else. A larger divorced population suggests more so-
cial structures that can aid the divorced woman, from friends who urge
divorce when a husband is abusive or even boorish to jobs that are more
sensitive to the needs of single parents. Table 5 reflects the state divorce
rates in 1995. We find mixed results for the DIVRATE variable.
Poverty (POVERTY) in itself may cause divorce but should be no rea-
son for women to file as opposed to men.41 Yet there is evidence that
for lower economic groups, marriages are particularly difficult for wives
(Kurz, 1995): there is more violence and general “rough living” through
“hanging out with the guys,” and more alcoholic behavior. There is less
ability to be a part of a stable community that will shore up a troubled re-
lationship, since indigent people move frequently (McLanahan and Sande-
fer, 1994, p. 94). For these women, single parenthood—and the ability to
collect Aid for Dependent Children (AFDC)—may not seem too different
from their married state (McLanahan and Garfinkel, 1989; McLanahan,
Casper, and Garfinkel, 1995). Hence, we might predict a positive relation-
ship between POVERTY and female filing; however, we find this to be
the case for Virginia, but not for Oregon.
Population density (POPDENS) may be connected to filing behavior
because of the resulting “thickness” of the remarriage market.42 On one
hand, wives in rural areas—as many of the wives we studied were—may
be more involved in their husband’s farming enterprises and simply have
fewer outside employment opportunities than their husbands (Watkins v.
Watkins, 1980; Murdoch v. Murdoch, 1973). On the other hand, in more
densely populated areas husbands should be more likely to file because
in cities, the “thicker” remarriage market will give them more choices of
a new spouse (and they, more often than their wives, will remarry soon
after divorce). Our data support the latter hypothesis in the first three of
the equations.
41. One of the many studies suggesting low income as an instability-enhancer is
Becker, Landes, and Michael (1977). There may be many reasons why income enhances
instability. Sociologists suggest that the husband’s sense of self-esteem is strongly tied
to his earning capacity. When it decreases, he is less happy and more prone to violence
against the family (Kurz, 1995). Divorce is more likely.
42. A “thick” market is one in which there are plenty of suppliers for a buyer to
choose from. As Richard A. Epstein (1988, p. 768) says in an article about rent control,
“The bilateral holdout problem is effectively controlled by increasing the number of
alternative opportunities available. ‘Thick’ markets work more smoothly than ‘thin’
ones.” (See also Haddock, McChesney, and Spiegel, 1990, pp. 21–24).
152 American Law and Economics Review V2 N1 2000 (126–169)
Table 5. Comparative Divorce Rates, 1995
State Divorces Population Divorce Rate
Alabama 25,957 14,253 6.103221
Alaska 2,999 604 4.965232
Arizona 27,633 4,218 6.551209
Arkansas 16,041 2,484 6.457729
California — 31,589 99
Colorado 18,795 3,747 5.016013
Connecticut 9,597 3,275 2.930382
Delaware 3,671 717 5.119944
Florida 79,528 14,166 5.614005
Georgia 37,209 7,201 5.167199
Hawaii 5,494 1,187 4.628475
Idaho 6,770 1,163 5.821152
Illinois 38,784 11,830 3.278445
Indiana — 5,803 99
Iowa 10,504 2,842 3.695989
Kansas 10,732 2,565 4.184016
Kentucky 22,883 3,860 5.928238
Louisiana — 4,342 99
Maine 5,467 1,241 4.405318
Maryland 15,025 5,042 2.979968
Massachusetts 13,453 6,074 2.21485
Michigan 39,910 9,549 4.179495
Minnesota 15,828 4,610 3.433406
Mississippi 13,076 2,697 4.84835
Missouri 26,844 5,324 5.042074
Montana 4,179 870 4.803448
Nebraska 6,256 1,637 3.821625
Nevada 12,355 1,530 8.075163
New Hampshire 4,871 1,148 4.243031
New Jersey 24,293 7,945 3.057646
New Mexico 11,279 1,685 6.693769
New York 55,999 18,136 3.087726
North Carolina 36,978 7,195 5.139402
North Dakota 2,204 641 3.438378
Ohio 48,682 11,151 4.365707
Oklahoma 21,829 3,278 6.659243
Oregon 14,982 3,141 4.769819
Pennsylvania 39,439 12,072 3.266981
Rhode Island 3,654 990 3.690909
South Carolina 14,753 3,673 4.016608
South Dakota 2,888 729 3.9615914
Tennessee 33,081 5,256 6.29395
Texas 98,373 18,724 5.253845
Utah 8,892 1,951 4.557663
Vermont 2,786 585 4.762393
Why Most Divorce Filers Are Women 153
Table 5. Continued
State Divorces Population Divorce Rate
Virginia 28,897 6,618 4.366425
Washington 29,677 5,431 5.464371
West Virginia 9,393 1,828 5.138403
Wisconsin 17,522 5,123 3.420262
Wyoming 3,197 480 6.660417
4.6. Black Sub-sample
Table 3 contains a regression using a sub-sample of black husbands and
wives from the three states collecting racial information. Generally speak-
ing, the results of this sample are similar to the results in the other regres-
sions. In particular, the children variables are large and statistically signif-
icant, suggesting that custody decisions are important for filing. Also, the
variable RELED (or relative years of education) remains large and signif-
icant. The major difference is in the age related variables. These variables
essentially measure the presence of what we call “traditional” marriages,
marriages in which the wife marries young and stays home with children.
The lack of statistical significance is explained by the male/female earn-
ings difference between blacks and whites. Whereas in 1995 white females
still earned only 71% of what white males earned, for blacks this earn-
ings ratio was 85% (U.S. Bureau of the Census, 1998, Table P33). More
similar wages means that black women are more likely to be working
than their white counterparts because the gains from market and house-
hold specialization are smaller. As a result, the age-related variables are
not good predictors of divorce filing.
4.7. Filing vs. Instigating Divorces
Finally, we should mention one additional factor that can be used to test
our model. Throughout the paper we have assumed that the one who files
for divorce also initiates marital breakup. Although this is clearly not al-
ways the case (and in cruelty and adultery cases, it is the aggrieved spouse
who files), we predict that the filer is the same as the initiator in cases
where divorce occurs quickly after breakup. When filing is independent
of the marital break-up, because causation is difficult to sort out, there
should be no systematic predictors of who files for divorce. Hence, we
would expect that any clear indicators of differences in filers’ character-
154 American Law and Economics Review V2 N1 2000 (126–169)
istics would disappear over time. That is, we should see clear differences
between those who file and those who do not for marriages that end after
short separations where causation is less murky. For couples who separate
for a long time before divorce, the distinction between filers should blur.
Oregon’s data contains another variable of interest: the length of sep-
aration before divorce was granted.43 A long period of separation in a
no-fault state like Oregon could mean at least two things. The first, and
we believe less likely meaning, is that a long separation period indicates
a contested divorce, with the procedure dragged out to accommodate dis-
covery, motions, and even a trial. The second, and more interesting, pos-
sibility is that a lengthy separation signals that the marriage disintegrated
long before the actual divorce. Who filed at this point would be largely
a matter of convenience and might be unrelated to the causes we have
identified. We therefore separated the Oregon divorces into two separate
regressions, one for divorces following a short (less than two-year) sep-
aration, and one for divorces following a lengthy (more than two-year)
separation. The results are reported in the two Oregon columns of Ta-
ble 4.
These regressions demonstrate that substantially more information
about the reasons for filing appears with shorter separation periods. Not
only is the percentage of correct predictions of who filed higher, but also
individual variables such as the ages of the spouses (at marriage and at
divorce) and the norm-related divorce rate make a difference only for the
prompter divorces. Divorce filing, then, does not appear to be simply a
matter of convenience, as has been suggested in some of the literature
(Brinig and Buckley, 1998b; Parkman, 1992). Probably initiation of mar-
riage dissolution correlates highly with divorce filing, as Braver and his
co-authors (1993) suggest.
5. The Role of Child Custody in Divorce Filing
Table 6 uses the regression coefficients derived in the “All states” col-
umn of Table 3 to provide some intuition for the relative magnitudes of
43. Oregon, which allows divorces only for “irreconcilable differences,” allows them
to be filed any time 90 days have passed since the service of the divorce summons.
In extraordinary cases the judge may waive even this relatively short time period. Or.
Rev. Stat. (1998).
Why Most Divorce Filers Are Women 155
Table 6. How Much Do the Numbers Matter?
Case 1: Wife married at 19, husband at 26.
They have been married 20 years, and have
three kids. The husband gets custody. Hus-
band has 7 years more education than the
wife, and they live in a fault state. Wife is
white. Probability that wife files =.095.
However, if the wife got custody, the prob-
ability that she would file increases to .69.
Case 2: They married when both were 26,
and have been married 5 years. They have
two children, and the wife will get custody.
The husband finished college and the wife
a law degree (three more years of educa-
tion). They live in a no-fault state and wife
is white. Probability that wife files =.79.
However, if the husband got custody, the
probability that the wife files would decrease
to .32.
the different variables. Table 6 displays the strength of the custody coef-
ficients under the conditions where the other variables are at their most
extreme. In case 1, we have a situation biased in favor of the husband’s
filing. Merely switching the anticipation of custody in this case from the
husband to the wife changes the probability of the wife’s filing from .095
to .69—slightly more than a seven-fold increase. In case 2, the bias is in
favor of the wife’s filing. Yet switching the anticipation of custody from
the wife to the husband results in a fall from .79 to .32 in the probability
of the wife’s filing for divorce.
As we have stressed throughout the paper, filing behavior can be inter-
preted as either an attempt to leave a bad situation or an attempt to leave
the marriage with a disproportionate share of the marital property. Out-
side of the custody variables in our regressions, we find little evidence for
the exploitation theory and more for the appropriation one. The question
is: which theory best explains the remarkably strong custody coefficients
we observe?
To understand how custody-related filing might be considered appro-
priation, we could simply describe children as assets—usually the most
valuable and sometimes the only assets produced by the marriage (Zelder,
1994).44 A variant of this (that might avoid concerns about commodifica-
tion of children (Mahoney, 1988, p. 82; Radin, 1987, p. 1905; Sunstein,
1994, p. 850) would be that children are not exactly like other assets,
44. Gary Becker (Becker and Lewis, 1973; Becker and Tomes, 1988) treated chil-
dren as one of the outputs maximized in the household production function.
156 American Law and Economics Review V2 N1 2000 (126–169)
but that wives, as a general rule, place higher value upon their offspring
than do their husbands (Fuchs, 1988, p. 72). Under either explanation,
when a marriage becomes shaky, the party placing the highest value upon
the children files. (In an extreme case, ending the marriage may even be
beneficial for the children. For example, a loving parent might remove
the children even at some financial cost in order to spare them continued
contact with an unstable or impaired parent.)45
Alternatively, custody outcomes may strongly correlate with divorce
filing because the spouse who desires custody upon divorce has been more
involved with the children during marriage. Such involvement, which may
require some withdrawal from the paid labor force, sets up a dependence
relationship (Becker, 1991, p. 43; Fineman, 1995a, 1995b) that is not
captured by the human capital (education or age) variables. That is, even
though a wife has a college or graduate degree, or even though she is
more educated than her husband, she may remain out of the labor force
during her children’s infancy, suffering a diminished lifetime income. She
may thereafter need to make accommodations to childrearing even when
she returns to full employment.46 Once she becomes dependent in this
way because of child bearing or child rearing, she is subject to the same
exploitation we described earlier in the paper. In this view, she files when
the marital situation becomes intolerable, usually for some reason not
directly related to custody issues.
Having custody of children may even be a way of asserting control
over a noncustodial parent (Driscoll, 1997), either personally (Ezra, 1994;
Masters, 1998; Paul, 1989) or through the child support that usually goes
along with the children (Weiss and Willis, 1993; Maccoby and Mnookin,
1992). The tremendous quantity (and frequent vindictiveness) of litigation
over these post-divorce custody problems suggests that continuing rela-
tionships in this way indicates that custody may be a different type of
asset, if it is indeed an asset. Modern divorce theory espouses a “clean
break” concept (Ellman, 1989; Kay, 1987, p. 313); these post-divorce cus-
45. Hetherington et al. (1998) supply evidence that children, usually harmed by
divorce, are better off following the end of a highly conflicted marriage.
46. This is one of the few bases for compensatory spousal support allowed by the
American Law Institute (1998; §5.03[2][b] and §5.06 and Comment [a]). For economic
literature, see Fuchs (1998, p. 62), Hadfield (1993), Hersch, (1991), Jacobsen and Levin
(1995), and Wright (1991).
Why Most Divorce Filers Are Women 157
tody battles suggest a relationship that continues despite divorce (Brinig,
1996, pp. 421–23; Weiss and Willis, 1985).
Although a number of state legislatures are currently considering some
change in divorce grounds (such as “covenant marriage” or even a return
to fault grounds), in nearly all states, as well as in the scholarly litera-
ture, custody standards and rules are “ground zero in the gender wars”
(Carbone, forthcoming).47 Because there is so much ferver over custody
standards and because, whatever the custody rules’ impact upon parents,
the outcomes are so important to children (Hetherington et al., 1982), we
suggest further study to sort out the most important reasons that filing
corresponds so closely to custody. We also suggest that because custody
outcomes are so obviously important to who files for divorce, changes in
custody rules are likely to have a major impact not only upon divorce fil-
ings but upon the conduct of marriage itself (Brinig and Buckley, 1998a;
Williams, 1999).
In many modern marriages, men seemingly hold up their parts of a tra-
ditional bargain in a world where many, if not most, women have changed
their roles dramatically (Nock, 1999). Men who see dual-earner parents
divorcing tend to see the wife’s filing (and probably getting custody) as
taking the children from the husband and may suggest some sort of joint
custody presumption as a remedy (Fay, 1989). Women who view the same
situation overwhelmingly see a working mother who files as being pushed
out of an apparently bleak and hopeless situation, filing because she is sim-
ply exhausted. They prefer a custody pattern more closely mimicking the
one set in the marriage, where the husband would have some meaningful
parenting opportunities but the wife would remain the primary custodian
(American Law Institute, 1998). Such women suggest not only that has
she “earned custody” in a way her workaholic husband has not (Grillo,
1991; Kearney, 1996; McLain, 1994), but also that the children would not
be as disrupted by such an arrangement.
The implications of whether women with children who file do so to
“take assets” or because they are “exploited” might be teased out from a
different data set. One could examine work and household patterns of both
divorcing spouses at an earlier time (t) holding constant race, age, income,
47. The phrase refers to the exact place where a nuclear device detonates. By this
we mean, as Carbone does, that it is by far the most significant issue for most couples,
itself driving other possible contributions to divorce as well as labor force differences.
158 American Law and Economics Review V2 N1 2000 (126–169)
length of marriage, and education. An additional variable would indicate
whether each spouse was satisfied with the fairness of the household and
labor market arrangements.48 If the husbands’ and wives’ working and
household patterns were similar at time (t), and if they did not see their
division of childcare and housework as a big problem in the marriage,
a divorce by t(1) would probably be for other reasons than “exhaustion,
and child custody might indeed simply be asset appropriation. If there was
strong evidence of inequality in child care and housework and unhappiness
about it in the earlier period, a subsequent divorce would seem more likely
to be because of a felt exploitation coming out of the way child care and
other household responsibilities were handled during the marriage.49
6. Conclusion
Our results are consistent with our hypothesis that filing behavior is
driven by self-interest at the time of divorce. Individuals file for divorce
when there are marital assets that may be appropriated through divorce, as
in the case of leaving when they have received the benefit of educational
investments such as advanced degrees. However, individuals may also file
when they are being exploited within the marriage, as when the other
party commits a major violation of the marriage contract, such as cruelty.
Interestingly, though, cruelty amounts to only 6% of all divorce filings in
Virginia.50 We have found that who gets the children is by far the most
important component in deciding who files for divorce, particularly when
there is little quarrel about property, as when the separation is long.
What does all this mean for divorce reform and for predictions of fu-
ture filing behavior? It suggests that as men and women’s labor force
income becomes more nearly equal, the difference in filing rates should
disappear and will likely be determined by custody alone. The legal ram-
ifications of the no-fault variable are perhaps the most interesting. In the
jurisdictions we studied, even taking into account the higher divorce fil-
ing rates, women take advantage of the no-fault option more than do their
48. Such a data set exists, in the National Survey of Families and Households
(NSFH). The stability of marriages with various labor force and household work pat-
terns and attitudes is being examined by Brinig and Nock.
49. In the NSFH, we don’t know who filed, but we do know who got custody.
50. Virginia was the only state surveyed where we had indications of the grounds
for divorce. Please note the caution about underreporting in note 44, supra.
Why Most Divorce Filers Are Women 159
Appendix. Frequency Distribution of Respondents’ Reports of Which
Spouses Wanted the First Marriage to End, by Sex: National Survey of
Families and Households, 1987-88 and 1992-94
Question: “Sometimes both partners equally want a marriage to end,
other times one partner wants it to end much more than the other.
Circle the number of the answer that best describes how it was in your
case.”
Item and Women Men Total
Response
Categories nPercent nPercent nPercent
1. I wanted the mar-
riage to end BUT my
husband/wife did not
338 27.2 67 9.6 405 20.7
2. I wanted it to
end MORE THAN
my husband/wife did
239 19.4 70 10.0 309 16.0
3. We both wanted it
to end
223 17.8 197 28.1 420 21.6
4. My husband/wife
wanted it to end
MORE THAN I did
110 9.0 113 16.2 223 11.6
5. My husband/wife
wanted it to end BUT
I did not
116 9.5 142 20.3 258 13.4
Inappropriate/no
answer
211 17.1 111 15.8 322 16.6
Total Responses 1237 100.0 700 100.0 1937 99.9
husbands.51 From the woman’s perspective, repealing no-fault laws may
cause harm as compared to passing reforms that will make marriages
better.52 However, if filing behavior is mostly driven by attempts to ex-
ploit the other partner through divorce, tougher laws may be socially more
51. This does not mean that no-fault decreases the number of divorces; in fact, the
evidence is to the contrary. From the married mothers’ perspective, even taking into
account the costs to the children, a quick divorce seems the best of unhappy choices.
There is some evidence that no-fault has increased the divorce rate (Allen, 1992a;
Brinig and Buckley, 1998b; Friedberg, 1998).
52. For some specific suggestions, see Waite (1995, p. 500) (eliminating “marriage
taxation penalty”); Staudt (1996) (allowing homemaking women to be taxed for, and
receive, Social Security); and Silbaugh (1996) (allowing women to enforceably contract
with their husbands over housework).
160 American Law and Economics Review V2 N1 2000 (126–169)
beneficial. Because the custody coefficients were the largest by far, fam-
ily law reformers may want to concentrate on formulating custody rules
that will alter the spouses’ relative gains from marriage. The authors favor
custody rules that replicate the patterns in marriage as closely as possible
while giving each spouse a meaningful role (i.e., not zero) after divorce,
as opposed to either a “winner takes all” rule like “maternal preference”
or “primary caretaker” or a presumption of equal joint custody shares.
A replication rule would not make either spouse better off divorced than
during marriage (Altman, 1996). It might encourage the sharing of child-
rearing and other associated tasks, allowing more equal participation in
the labor force.
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... 17 This result is in line with the literature supporting the fact that children increase marital stability, particularly when they are very young (Huber and Spitze 1980;Waite and Lillard 1991;De Graaf and Kalmijn 2006a). However, it has to be said that, contrary to what is generally thought, women often ask for divorce despite the presence of children (Brinig and Allen 2000). study this phenomenon. ...
... This has valuable welfare implications for divorce law reforms and for designing social and economic policies. Along this line, as pointed out in Brinig and Allen (2000), this suggests that divorce incentives should be re-examined as the forces affecting net benefits from marriage may be quite complicated, and perhaps asymmetric between men and women. Indeed, any change in divorce law related to the financial wellbeing of divorcing women could have important consequences for the welfare of individuals in families that do not opt for dissolution. ...
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... Women are more inclined to separation and divorce than men when differences between the municipal tax rates on primary and secondary home increase. This finding suggests the greater propensity of women to marry and divorce (Brinig and Allen, 2000) for economic reasons, given a perception of marriage benefits different from that of men (Kalmijn and Poortman, 2006). The rest of the paper is structured as follows. ...
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... The analyses are performed for men and women of European and Mexican ancestries separately to highlight differences in immigrant divorce by gender and ethnicity. The amount of time put into a relationship (Heaton and Blake 1999) and the initiation of the divorce may differ by gender (Brinig and Allen 2000;Kalmijn and Poortman 2006). Further, previously studied determinants of divorce are found to have very different effects for men and women (Furtado et al. 2013). ...
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