The Effect of Conflicting Moral and Legal Rules on Bargaining Behavior: The Case of No-Fault Divorce

Abstract

Under contemporary no-fault divorce laws, it is impermissible to factor marital misconduct, a highly salient component of many divorces, into decisions about how to allocate joint property between the parties. We hypothesize that the no-fault law is in conflict with a moral intuition that favors punishment for people who break the marriage contract, and that people will be either unwilling or unable to fully ignore marital fault in the context of divorce settlement negotiations. In four web-based experiments, we asked subjects to read vignettes about divorcing couples, and then to rate proposals by each party about how to divide the marital property. We found that subjects rated wrongdoers¿ proposals lower than victims¿ proposals, even when they were instructed to ignore fault. Some subjects are explicit about their intention to ignore the law, but many subjects take fault into account without awareness that they are doing so. We also asked subjects to take different roles or points of view in assessing the proposals (e.g., the wife, the husband, or an impartial judge) in order to assess the role of self-serving biases in divorce negotiations. When subjects were assessing neutral divorces, scenarios in which the parties had simply grown apart, they showed a clear effect of perspective, rating their own proposals higher than the other party¿s proposals. However, when subjects were assessing unilateral-fault divorces, the effect of perspective was even greater, especially for subjects taking the perspectives of victims. We conclude that under certain conditions of unilateral fault, the no-fault divorce law may actually increase the likelihood of impasse in divorce negotiations.

Keywords: divorce, negotiation, no-fault, fault, bias, family law, bargaining