Category: Divorce, child support, custody, family law

Hillary Clinton seems to be riding all the way to the White House on a platform of female victimhood, at the center of which is data showing that American women, on average, earn less than American men. (Though in our transgender age, it is unclear if this distinction is meaningful. How do we know that “men” who responded to a wage survey in 2015 continue to identify as men?)

In a previous posting I questioned whether W-2 earnings was the right way to look at the economics of gender equality. If Americans who identify as “female” can spend and/or consume more than Americans who identify as “male,” then wouldn’t we say that women were actually doing better than men economically?

Alessandra Voena, a professor at the University of Chicago, took a deeper look at this and wrote up her results in “Divorce laws and the economic behavior of married couples.” Here are some excerpts:

Household survey data from the United States shows that the introduction of unilateral divorce in states that imposed an equal division of property is associated with higher household savings and lower female employment rates among couples that are already married.

During the 1970s and 1980s, divorce laws were rewritten around the United States. Until then, mutual consent—the consent of both spouses—was often a requirement and upon divorce, property was assigned to the spouse who held the formal title to it; usually, this was the husband.

Then, profound state-level reforms brought about the so-called “unilateral divorce revolution.” Most couples now entered a legal system in which either spouse could obtain a divorce without the consent of the other and also keep a fraction of the marital assets, often close to fifty percent.

… forty percent of married couples and about one-third of all people over their lifetimes are divorced.

… a property division regime change that favors one spouse can improve her position inside the marriage, particularly if she can obtain divorce without the other partner’s consent.

… in such states [providing no-fault divorce plus 50/50 property division], women who were already married became less likely to work, by approximately 5 percentage points. By analyzing additional time use surveys between 1965 and 1993, I find that the decrease in the labor supply of women was associated with an increase in the amount of leisure time they enjoyed.

In states with equal division of property, the law favors women at the time of divorce. When the equal division of property grants them more resources in the event of divorce than they are receiving in the marriage, unilateral divorce means that they can use the threat of divorce in their favor while remaining married, thereby increasing their leisure.

As was the conclusion of the economics research behind The Redistribution Recession, it seems that Americans respond eagerly to any system that permits spending/consumption without working.

When a substantial percentage of women can spend without working, either because they use the threat of divorce to enjoy a life of leisure while married or because they use the machinery of divorce litigation to collect property, alimony, and child support, that is going to widen the gender earnings gap. Consider Jessica Kosow, whose successful litigation after a four-year marriage is described in this chapter on Massachusetts family law. She receives roughly 3.2X what her average Ivy League classmates earn. Suppose that she gets bored sitting at home and takes a $15/hour job at a non-profit organization to supplement her $250,000/year after-tax divorce and child support revenues. Now she is exacerbating the gender gap statistics due to earning far less from wages than her male University of Pennsylvania classmates. The same would be true for any woman who is collecting a share of the earnings of a current or former spouse. She can have comparatively high spending power while choosing a job that pays less but is either more convenient or more enjoyable. “Convenience” and “fun” are not well captured in statistical studies of wages. Finally, consider that most states’ family law encourages women who are successful alimony plaintiffs to withdraw from the workforce (if they earn money their “need” for alimony is reduced and their payments may be reduced). Not every state routinely provides lifetime alimony, however. If a woman returns to the workforce after decades of leisure she won’t command as high a wage as man with a multi-decade track record of work experience.

(A professor at the American Economics Association convention offered a simpler, but consistent with Professor Voena’s results, response to the gender earnings gap: “Why would you work 9-5 if you could get paid for having sex or having children?”)

Professor Voena’s CV reveals an Italian background, a country that conforms to Civil Law (see the sections on family law in Denmark, Germany, and Switzerland for how this is different from our Common Law system). It may be this background that leads her to suggest “cheap and enforceable prenuptial agreements” as a change to the family law systems in most U.S. states. According to the litigators that we interviewed for Real World Divorce, however, prenuptial agreements in the U.S. can never be either cheap or enforceable with certainty. Quite a few couples spend more than $100,000 in legal fees simply arguing over the validity or meaning of a prenuptial agreement that itself may have cost $10,000+ to draft. In a Civil Law jurisdiction the drafting cost could be $0 (check a box on a form at the time of marriage) and the litigation cost would also be $0 (since it is a state-provided agreement). [Note that a motivated plaintiff can still litigate the validity of a German prenuptial agreement by obtaining venue in a Common Law country. See Nicolas Granatino’s attempt to get extra cash out of Katrin Radmacher by challenging a German prenup in a London court. He ultimately failed (Guardian), but it ran up a spectacular legal bill for Ms. Radmacher and he still earned a lot more from having sex with a rich woman than he could have from waged labor (the lawyers also kept earning; the litigation continued in 2011, five years after the couple separated). Mr. Granatino’s behavior is also consistent with what Professor Voena found among American women. Mr. Granatino had a high-paying presumably not-very-fun job at JP Morgan. Once he had a high-income spouse and the possibility of a high-revenue divorce lawsuit, he quit to amuse himself in graduate school.]

Given that it is the public versus a $50 billion industry it seems safe to assume that the U.S. family law system won’t change substantially. Thus we can expect the “wage gap” to be an evergreen issue for politicians such as Hillary Clinton and also, when we combine family law with the other ways that Americans can get money without working, we can expect continued sluggish growth in GDP-per-capita.

Related:

• Professor Voena’s full paper from American Economic Review
• “Why Women Are the Biggest Emerging Market” (Harvard Business Review 2010): “Globally, women control nearly $12 trillion of the $18 trillion total overall consumer spending, a figure predicted to rise to $15 trillion by 2014.”