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8 Ohio St. J. on Disp. Resol. 279 (1992-1993)


For almost ten years, legal commentators have been aware of the possibility of applying economic bargaining principles to the problems of negotiations at the time of divorce. Although some cases and journal articles have mentioned the Mnookin and Komhauser article suggesting that custodial time and financial assets might be exchanged, attempts to apply the analysis have been confined to description. No one has attempted an empirical study to see if there really are trade-offs between custodial time and marital assets at the time of divorce, and there has been no formal model describing the process.

Furthermore, there has been no analytical discussion of what happens when the legal rules change, either in terms of the outcomes of bargaining or in terms of the transaction costs of the process. On the other hand, there has been much attention devoted to the plight of single women with children in the era of no-fault divorce.

This paper will attempt to fill the gap in the existing literature by examining the bargaining process that resolves the issues involved in divorce in the overwhelming majority of cases. It will investigate the jurisprudential consequences of such a system in terms of "result" versus "rule equality," and will discuss the effects of changes in the law on the resulting allocations as well as on the extent that the parties use the court system. The authors' results suggest that an unusually great variety of settlement outcomes is possible, depending upon the preferences of husbands and wives. In particular, we explain the apparent absence of the exchanges of custody for shares of marital property in many cases. In addition, we show that changes in rules regarding grounds for divorce, alimony, property and child custody affect not only the results reached, but also affect, to a greater extent, the procedures and transaction costs involved in reaching them.


Originally published in Ohio State Journal on Dispute Resolution. Reprinted with permission.

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