Bargaining in the Shadow of the Law: The Case of Divorce

Abstract

This article suggests an alternative way of thinking about the role of law at the time of divorce. It is concerned primarily with the impact of the legal system on negotiations and bargaining that occur outside the courtroom. We see the primary function of contemporary divorce law not as imposing order from above, but rather as providing a framework within which divorcing couples can themselves determine their postdissolution rights and responsibilities. This process by which parties to a marriage are empowered to create their own legally enforceable commitments is a form of "private ordering."'

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“…A good deal of sociolegal scholarship considers how individuals use law-and nonenforcement specificallyas a strategic resource for the management of their institutional and interpersonal relationships. This dynamic is often called "bargaining in the shadow of the law" (Mnookin and Kornhauser 1979;Cooter et al, 1982). The basic premise is that formal enforcement-"taking someone to court"-is only one way in which people choose to enforce their legal obligations to one another, and is often not the best way.…”

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“…Another model of custody outcomes posits that custody is determined through a bargaining and negotiation process (Mnookin and Kornhauser 1979;Teachman and Polonko 1990); consequences could include that the parent with more power in the relationship or the parent who initiates divorce proceedings would be more likely to get the custody outcome he or she desires. In support of this framework, as a mother's share of the couple's total income rises, she is more likely to have sole custody (Cancian and Meyer 1998).…”

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