Divorce has a long history of economically disempowering women. From the time of coverture to the era of modern divorce reform, women have been persistently disadvantaged by divorce relative to men. Family law scholars have long attributed this disadvantage to the continued prevalence of traditional gender roles and the failure of current marital asset division laws to account adequately for this prevalence. In spite of the progress made by the women’s movement over the past half-century, married, heterosexual women endure as the primary caretaker in the majority of households, and married, heterosexual men endure as the primary breadwinners. Undoubtedly, women who have made career sacrifices during a marriage face a harsh economic reality when the marriage breaks down. But this Article is the first to question whether the persistence of traditional gender roles is solely responsible for the gender imbalances in economic security following a divorce. Instead, this Article posits that gender bias against women—bias that is completely separate from women’s caretaking or breadwinning status—also harms women in divorce proceedings. This gender bias may be harbored by judges, mediators, lawyers, and even litigants themselves.
To test this theory, the Article utilizes an experimental vignette study, fielded on 3,022 subjects. Subjects were randomly assigned to view one of several highly similar scenarios where a couple is divorcing after a long-term marriage, and asked to divide marital assets between them. In half of the scenarios, the male spouse was the sole breadwinner and the female spouse was the principal caretaker, consistent with traditional gender roles. But in the other half of the scenarios, the situation was reversed, with the female as the sole breadwinner and the male as the primary caretaker. Comparing results across subjects reveals that subjects consistently favored the male spouse over the similarly situated female spouse. On average, both male and female subjects assigned a greater share of the marital assets to the male breadwinner than to the female breadwinner. Male and female subjects also assigned a greater share of the marital assets to the male caretaker than to the female caretaker. The results are consistent with gender bias, as subjects penalize the female spouse in both the stereotypic (male-breadwinner/female-caretaker) and the nonstereotypic (female-breadwinner/male-caretaker) scenarios. Given these sustained preferences for the male spouse in the divorce setting, the Article concludes by considering empathy induction, auditing, and legal presumption reforms to counter the effects of bias in divorce settlements and to assist women, at last, in gaining equivalent economic standing with men after a divorce.
INTRODUCTION
Marriage has come a long way, particularly in the past half-century. Many long-term couples no longer default to marriage as the taboos associated with cohabitation and children outside of marriage decline.1 Same-sex marriage, once a thing of fantasy, is now a constitutionally protected right.2 Even for more traditional, heterosexual married couples with children, power dynamics may have shifted3 as an increasing number of women work outside the home,4 and an increasing number of men undertake childcare responsibilities.5
So too has divorce, the counterpart of marriage, come a long way in the past half-century. Approximately fifty years ago, a reform movement began sweeping the country to make divorces easier to obtain.6 No longer would spouses be required to prove a specific reason or party at fault for the marriage’s breakdown. Instead, a faultless breakdown due to irreconcilable differences would be enough to end a marriage.7 On the heels of this revolutionary reform, divorce rates rose precipitously so that, today, more than one in four U.S. adults have ever been divorced.8
Although so much about divorce has changed over the past few decades, one aspect of divorce has remained quite consistent over time: women’s economic disadvantage.9 Besides simplifying the divorce process, divorce reform introduced significant changes to how marital assets were divided, so that assets would thenceforth be divided equitably10—a move intended in part to prevent husbands from taking everything and leaving their wives destitute.11 Yet women as a whole continue to see their finances decline after divorce. In fact, a recent study estimated that women’s incomes decline after divorce between 12% to 30%, while men’s incomes increase between 31% to 36%.12 Meanwhile, women’s post-divorce poverty rate remains almost three times the post-divorce poverty rate of men.13
Family law scholars have long recognized this gender gap in economic outcomes after divorce, but they have largely blamed the continued popular embrace of traditional gender roles and the current law’s inability to account for it.14 Specifically, family law scholars have assumed that the problem stems from the inability of marital asset division law to value women’s contributions to the home, as well as its failure to recognize that women persist as the primary caretaker in most households.15
Such forces undoubtedly account for some of the persistence in unequal gender outcomes after divorce.16 Nonetheless, one danger of solely relying on these gender-role-based explanations is that they make it easy for critics to blame the divorce disparity on women making different economic choices than men.17 Another danger of solely relying on these gender-role-based explanations is that it precludes other possible explanations. And there is reason to believe that another explanation exists—gender bias.
Research on implicit and explicit bias has abounded in the legal scholarship of the past two decades, yet remains noticeably absent from the family law literature.18 Despite well-known disparities in attitudes towards minorities and women19—and despite the well-known disparities in divorce outcomes by gender—scholars have yet to consider whether gender bias by decision-makers, lawyers, and litigants may be responsible for at least some of the post-divorce gap in men’s and women’s finances. Throughout this Article, I use the term gender bias to signify a preference towards individuals of one gender that is independent of their economic choices in the labor market.
This Article fills the gap within the family law literature by assessing the effects of both household roles and gender bias in determining marital asset split. Using an experimental vignette study, the Article evaluates whether decision-makers display equal treatment of divorcing male and female spouses, and whether decision-makers’ treatment varies with the prior economic contributions of each spouse. Evaluating the results across subjects reveals a consistent preference for the male spouse in dividing marital assets—a result consistent with gender bias. Decision-makers award a smaller percentage of assets to the woman, relative to a similarly situated man, regardless of the woman’s prior economic contributions to the household. The Article thus advocates for reforms targeted at legal actors and legal decision-makers to counteract the effects of gender bias in divorce settlements.
In making this argument, the Article proceeds as follows: in Part I, I briefly review the divorce reform movement, its failure to align men’s and women’s outcomes, and prior scholarly explanations for its failure. I further look beyond family law scholarship to consider the possible role of gender bias in divorce reform’s failure. In Part II, I introduce the experiment and discuss the results. Part III suggests three reforms to counteract the role of gender bias in divorce—instituting empathy-induction reforms for decision-makers, auditing decision-maker outcomes, and, most importantly, introducing a legal presumption of equal division.
I. UNEQUAL OUTCOMES: UNDERSTANDING WOMEN’S DISADVANTAGE IN DIVORCE
For decades, scholars have lamented the economic harms divorce brings upon women but not upon men. Women’s relative disadvantages after divorce are longstanding, extending from times when married women were prohibited from owning property.20 The movement to reform divorce laws in the 1960s and 1970s was intended in part to ameliorate this disadvantage, but as reviewed in Section I.A, the movement’s actual effect has been questionable. After considering these reformed divorce laws, which remain in place today, Sections I.B and I.C consider possible explanations for the persistence of women’s post-divorce economic disadvantages decades after divorce reform.
A. The Disappointment of Equitable Division
Coverture has long been formally abolished,21 yet some vestiges of this doctrine lingered within state laws until just a few decades ago.22 Indeed, one of the final remnants of the doctrine that remained concerned the distribution of marital assets upon divorce. Only half a century ago, states persisted in dividing assets according to the property-title owner at the time of divorce.23 This traditional regime, not surprisingly, favored husbands over wives, as men were more likely than women to be the household’s primary or sole earner (and continue to be so even today).24 Men, as a result, held the title to most, if not all, of the marital property. The natural consequence of the traditional property-title holder regime, as Elizabeth Scott has noted, was for the costs of divorce to “[fall] disproportionately on wives, who had far more to lose than did husbands if the marriage failed.”25 For victims of this regime, the only remedy available in many jurisdictions was the award of alimony,26 yet such awards often proved insufficient and went unpaid.27 Consequently, twentieth-century divorce law advocates and reformers decried the traditional property-title-holder division regime as a mechanism for constraining and impoverishing women.28
Actual reform to U.S. divorce laws did not begin, however, until 1969. In that year, the pioneering state in the divorce reform movement, California, passed its Family Law Act, the first no-fault-based divorce regime in the country.29 Although attribution of fault and property division may, on their face, seem to have little to do with each other, in fact they were both key elements in the same comprehensive divorce reform movement often described by commentators as the no-fault divorce revolution.30 Besides its namesake reform, which eliminated the requirement that one spouse take the blame for the breakdown of the marriage in the event of divorce,31 this revolution encompassed reforms in property division, child custody,32 and gender- and sexuality-based presumptions.33 With respect to property division, the frontrunning California legislation settled on a system of equal division of assets.34 Even though subsequent reforms by other states would mimic the California legislation in many respects, the majority of states would instead settle on an alternative property division regime: equitable division of assets.35
The proliferation of the equitable division standard is largely due to the promulgation of the Uniform Marriage and Divorce Act (UMDA) by the National Conference of Commissioners on Uniform State Laws.36 An ongoing project since the 1960s, the final version of the UMDA, issued in 1973, endorsed the equitable division standard.37 According to one of the UMDA’s reporters, the preference for equitable division arose from a concern that “the legislation of equality [would result] in a worsened position for women and, by extension, a worsened position for children.”38 This concern was particularly salient since the UMDA also favored one-time division of marital property over ongoing alimony awards as a principal means of dividing assets at the time of divorce.39 Under the UMDA, equitable division of assets requires that assets be divided
without regard to marital misconduct, in just proportions after considering all relevant factors including: (1) contribution of each spouse to acquisition of the marital property, including contribution of a spouse as homemaker; (2) the value of the property set apart to each spouse; (3) duration of the marriage; and (4) economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children.40
While state-by-state legislation may have introduced some variations in language, this UMDA definition of equitable division remains the baseline standard in equitable division states.41
Although the equitable division standard—like no-fault divorce reform more generally—was supposed to improve economic conditions for wives upon divorce,42 scholars began to decry the realities of new divorce legislation almost immediately. The origins of this backlash against divorce reform are often traced to a 1985 book by sociologist Lenore J. Weitzman, The Divorce Revolution.43 After conducting an extensive qualitative and quantitative case study of divorce outcomes in California in the wake of its no-fault legislation, Weitzman concluded that in the year following divorce, the standard of living for ex-husbands increased by 42%, while the standard of living for ex-wives declined by 73%.44 The accuracy of Weitzman’s figures have subsequently been called into question,45 yet even revised figures assessing relative quality of life after a no-fault divorce are dismal for women.46 Beyond California, a few subsequent empirical studies have focused on no-fault regimes in which assets are divided equitably between divorcing spouses, as is the case in forty-seven states.47 These studies have concluded that outcomes for women under equitable division regimes have been particularly poor.48 Because equitable division does not even guarantee women equal division of marital assets,49 it may leave divorcing women in a particularly vulnerable state when the proceedings have concluded.50
How vulnerable divorced wives remain under equitable division regimes remains a source of debate. Some scholars have argued that divorced women are economically worse off under equitable division regimes than they were under traditional property-title-holder division regimes.51 Others have pushed back against this assertion, asserting that economic conditions of divorced women have improved, at least somewhat, since the no-fault divorce revolution.52 From an empirical standpoint, the difficulty in resolving this debate stems from an inability to source reliable and representative data on divorces. Divorce cases are generally subject to simple, non-extensive filing requirements, particularly if they settle; the divorce cases in which more extensive filings and judicial opinions are available are highly contested, and arguably less representative, divorce cases.53 Such difficulties exist when gathering data on even the most recent divorces; gathering data on pre-revolution divorces poses the additional challenges associated with older data.54 Still, based on the limited empirical data that do exist, scholars have universally concluded that divorced women continue to be financially worse off than divorced men under modern equitable division regimes.55
The question then arises as to why women, on average, remain comparatively disadvantaged by divorce. With regard to this question, multiple hypotheses have developed to explain the persistence of women’s unfavorable state. These hypotheses have universally focused on current laws’ failure to account for differences in the social constructions (and social realities) of gender.56 The next Section briefly discusses these hypotheses and their associated reform proposals.
B. Accounting for Gender Roles
Family law scholars largely agree that women’s comparative disadvantage after divorce—which has endured beyond the divorce revolution—derives from divorce laws’ inability to account for highly pervasive differences in gender roles. Social and cultural constructions of men’s and women’s proper priorities, household responsibilities, strengths, and weaknesses are remarkably widespread, which have translated into large gaps in men’s and women’s relative economic power.57 Although men’s role in household caretaking has increased over time,58 women continue to bear the vast majority of such work. Even now, only one-fifth of fathers serve as the primary caretakers of their children,59 and married women devote almost twice as much time to childcare as do married men.60 Beyond children, married women also spend over 50% more time on housework than do married men.61 Conversely, men continue to serve as the sole or primary breadwinner in the majority of households.62
Conformity with traditional gender roles has remained remarkably common for married, heterosexual couples, yet modern equitable division laws—in the spirit of treating both spouses the same63—do not directly address gender.64 In deciding what distribution is equitable, these laws acknowledge that courts should consider both “the contribution or dissipation of each party” to the “value” of the marital estate and “the contribution of a spouse as a homemaker.”65 Beyond this acknowledgment, however, equitable distribution laws provide little guidance regarding how economic and non-economic contributions should be balanced, nor do they directly address the power imbalance that may result from one spouse holding most (or all) of the economic control.66 It is precisely equitable division laws’ failure to address the economic power imbalance inherent in conformity with traditional gender roles that has been faulted by most family law scholars.67
For example, many scholars have blamed equitable division laws’ failure to recognize that a spouse who takes a family-related career break68 (most often the woman)69 permanently diminishes her long-term earnings trajectory.70 Consequently, even if that spouse reenters the workforce upon divorce, both her immediate and long-run rate of compensation will be permanently lower than what she would have achieved in the absence of a break.71 Beyond impairing the earnings trajectory of the nonworking spouse, scholars have further faulted equitable division laws’ failure to recognize the permanent improvement in the working spouse’s long-term earnings trajectory.72 According to economic theory, the nonworking spouse specializing in the household allows the other spouse to specialize in working—that is, to devote more time and energy to his job—which, in general, should lead to greater success than he would have experienced in the absence of specialization.73 Thus, without an explicit legal mechanism to compensate working spouses for their permanently higher earnings trajectory and nonworking spouses for their permanently lower earnings trajectory, many scholars insist that equitable division laws will continue to produce “an economic catastrophe for homemakers”74 and to disadvantage women as a whole.75
Similar arguments have been made with respect to equitable division laws’ failure to counteract the norm of entitlement of breadwinners to their earnings. Joan Williams has referred to this norm as the “he who earns it, owns it” rule, observing that the rule “is so strong that typically it is not overcome even by explicit statutory language allowing courts to give wives entitlements that reflect their domestic contributions.”76 The broad discretion granted to trial courts under equitable division laws permits this norm to pervade judicial decisions, even if not acknowledged directly, by becoming the starting point from which marital assets are divided.77 Williams has deemed this starting point as “a holdover from coverture,”78 arguing that until such a starting point is explicitly disavowed by the text of equitable division laws, the nonworking spouse, and women generally, will continue to be relatively disadvantaged by divorce settlements.79
A final argument related to equitable division laws’ failure to acknowledge traditional gender roles has been made with respect to their influence on men’s and women’s behavior, instead of their economic situation. Rather than focusing on the problems created by conformity with traditional gender roles during marriage, these scholars focus on the problems created for women by conformity with traditional gender roles during divorce proceedings.80 Specifically, scholars have noted that the shift towards negotiating a one-time property division under equitable division regimes may expose the weaknesses in how women are traditionally socialized: to prefer cooperation81 and to value caring.82 Harnessing evidence from behavioral law, economics, and psychology on gender and negotiation, Tess Wilkinson-Ryan and Deborah Small have argued that the move away from ongoing alimony under equitable division regimes has disadvantaged women because
research indicates that women are more comfortable asking for things than negotiating for things. Alimony involves transfers from one party to another, whereas a financial settlement involves a division of resources between two parties; the former seems like more of an ask situation and the latter more of a negotiate situation.83
Compounding this disadvantage for women is the fact that the equitable division standard is inherently ambiguous, and psychology research suggests that preexisting “gender differences are typically larger when situations are ambiguous.”84
Whether the culprit is gendered approaches to bargaining or gendered approaches to household responsibilities, family law scholars have largely blamed adherence to traditional gender roles for women’s continued disadvantage in divorce proceedings. Some broad reform proposals exist to counter this persisting adherence: Vicki Schultz, for example, has suggested shortening the work week to encourage women to continue working (in spite of caretaking responsibilities) and men to take a greater role in caretaking.85 But, in the absence of such private sector reforms, most scholars have focused on reforming the text of equitable division laws to acknowledge and, in some sense, to compensate for any disadvantages created by conformity with traditional gender roles. For example, Cynthia Starnes has argued that equitable division laws should be reformed to match contemporary partnership laws, in which the economically disadvantaged spouse (usually the woman) receives a buyout of her interest in the enterprise—that is, the marriage.86 Williams has argued that the text of equitable division laws must be amended to reflect that a breadwinner’s earnings are not owned by the breadwinner alone, but instead by the breadwinner’s entire family, in order to counter the norm of entitlement to individual earnings.87 Wilkinson-Ryan and Small have suggested implementing default rules (such as a default rule favoring ongoing alimony support) designed to counter any disadvantages created for women who adhere to traditional female bargaining styles in divorce proceedings within equitable division regimes.88
As this Section has demonstrated, family law scholars have largely assumed that women’s relative disadvantage in divorce negotiations is the result of the inherently weak situation that traditional roles engender. This prior scholarship has been highly sympathetic towards women who embrace traditional gender roles—and are economically penalized in divorce as a result—and has decried their plight as normatively unfair. Yet, because the embrace of traditional roles may be alternatively characterized as stemming from individual choice, this prior scholarship opens the door for less sympathetic observers to characterize women’s relative disadvantage as perfectly fair and the result of individual desert. Indeed, the media is full of commentators who are quick to discredit all gender gaps as the result of women making different economic choices than men.89
Surprisingly absent from the family law scholarship is any consideration that women’s relative disadvantage in divorce stems from something other than their making different economic choices. Despite an increasingly robust literature on both implicit and explicit bias in other areas of legal scholarship, family law scholars have not considered the possibility that decision-makers, lawyers, and even litigants themselves may be biased against women in divorce proceedings, regardless of these women’s economic choices. The next Section turns to review the literature on bias from other areas of legal scholarship and to reflect on its potential role in the division of marital assets.
C. Accounting for Gender Bias
The effect of bias on legal decision-makers has received a great deal of attention by scholars, particularly during the past two decades.90 Bias against historically-disadvantaged groups may be conscious or unconscious, or as termed in the literature, explicit or implicit.91 Certainly, the explicit bias that has existed for centuries against African Americans, women, and other disadvantaged groups is well documented.92 Yet as modern society has evolved, and explicitly biased views have become increasingly taboo, scholars have begun to question the role that conscious bias presently plays in decision-making—even though both legal and economic outcomes remain relatively worse for historically disadvantaged groups.
Instead, many legal scholars have shifted their focus to the role of unconscious bias in creating unequal outcomes.93 Instead of assuming that individuals have complete control over their decisions (whether biased or not), implicit bias acknowledges that individuals do not always maintain conscious control over the impressions they have with respect to other people.94 Moreover, these impressions can, and often will, be biased against historically-disadvantaged groups.95 In psychology, implicit bias is classically demonstrated through the Implicit Association Test (IAT) in which subjects are asked to associate members of a group with pleasant or unpleasant words, and their response times are measured. In the race version of the IAT, respondents are typically quicker to associate pleasant words with White faces than with Black faces, thus demonstrating an implicit preference for Whites.96 Although much of the research focus has remained on race,97 implicit bias has also been demonstrated with respect to ethnicity, age, disability, and gender.98
Not all scholars are on board with implicit bias, and many continue to argue that explicit bias remains the culprit for the persistence of inequality among historically disadvantaged groups.99 Instead, these dissenting scholars argue that decision-makers are simply more sophisticated about hiding, or not admitting to, their conscious bias.100 Still, even scholars who resist the idea of implicit bias agree that some kind of bias persists throughout the legal system.101 Despite the fact that scholars may dispute the level of consciousness behind decision-maker bias, they collectively acknowledge the persistence of such bias in perpetuating disparate outcomes for disadvantaged groups.102
Testing for the presence of bias (whether explicit or implicit) in legal decision-making is difficult, if not impossible, using data collected from reported case outcomes. Although disparities in case outcomes experienced by historically disadvantaged litigants might be attributable to bias, they might also be attributable to other unobservable differences between disadvantaged and nondisadvantaged litigants, such as disparities in the quality of representation. Thus, legal scholars have increasingly relied on experimental vignette studies to examine the influence of bias in case outcomes. In such tests, subjects are randomly assigned to view a scenario and asked to make a decision regarding that scenario; while the scenarios are otherwise similar, some scenarios prime subjects with respect to a historically disadvantaged group. Researchers then test whether inter-subject responses meaningfully differ when the scenario involves a member of a historically disadvantaged group.103 While that experimental vignette studies are quite effective at detecting bias in subjects, they are less effective at distinguishing between implicit and explicit bias in subjects.104
A concrete, and common, implementation of such a vignette study involves scenarios in which subjects are asked to serve as jurors in a criminal trial, determining guilt or innocence at the end. Although the basic facts remain the same, in some scenarios, the defendant is a member of a minority group, which subjects are made aware of either directly or indirectly (typically through the defendant’s name). Researchers then compare rates of guilt determination in the minority defendant scenarios versus the nonminority defendant scenarios.105
Beyond the criminal context,106 experimental vignette studies have been used widely throughout legal scholarship in areas as diverse as civil juror decision-making,107 judicial decision-making,108 contract law,109 intellectual property law,110 and employment law.111 Yet in spite of their prevalence in other areas, vignette studies remain scarce within family law scholarship. Three notable exceptions include a vignette study testing willingness to report domestic violence,112 a vignette study examining the generosity of marital property awards to women who have taken a career break after having children,113 and a vignette study testing the influence of fault in divorce property settlements.114 This latter vignette study experiment, authored by Tess Wilkinson-Ryan and Jonathan Baron, tested whether subjects were influenced by perceptions of fault in the breakdown of a marriage, despite being told to ignore fault.115 In a series of experiments, subjects were asked to evaluate the reasonableness of proposals for division of marital property; even when explicitly instructed that they were evaluating the proposals in a no-fault, equitable division divorce regime, subjects wished to punish the spouse perceived to be at fault for the divorce.116 Wilkinson-Ryan and Baron thus concluded that no-fault laws were at odds with individuals’ moral intuitions, which might contribute to the “impasse and costly litigation” seen in many divorce cases.117
Even though this handful of vignette study experiments related to family law exist, absent from the literature is a vignette study on the role of gender bias in family law. Indeed, absent from the literature is any scholarship—experimental or otherwise—on the role of bias in family law.118 This absence is particularly surprising since family law scholars widely agree that divorce under no-fault, equitable division regimes remains “financially devastating for women and the minor children in their households.”119 As discussed in the prior Section, scholars have principally attributed these unequal gender outcomes to adherence to traditional gender roles, and the law’s failure to acknowledge or compensate for their prevalence.120 Scholars have not considered whether these unequal outcomes would persist even if men and women made the same economic choices.
Moreover, there are several reasons to suspect that something other than conformity with traditional gender roles might be responsible for women’s relatively poor outcomes after divorce. First, bias against historically disadvantaged groups is increasingly recognized by scholars as widespread, permeating throughout everyday life.121 Second, prior studies have demonstrated that bias is most pronounced when decision-makers enjoy broad, relatively unsupervised122 discretion under ambiguous standards.123 Equitable division regimes fit this description quite well; the charge to divide assets equitably, or fairly, contains no inherent standards or guideposts.124 Indeed, one scholar has remarked that “[t]he uncertainty of many family law standards is unique.”125 Third, prior experimental vignette study evidence exists to suggest that gender bias may negatively affect women when a sexual relationship has previously existed between civil litigants. In this study, Joni Hersch and Beverly Moran found that subjects’ knowledge of a prior sexual relationship between litigants after the demise of a short-term business venture negatively affected the damages award to the female litigant.126 Although the context of their experiment is outside the scope of family law, the result suggests that similar biases—totally unrelated to conformity with traditional gender roles—might be at work against women in the divorce context. The next Part introduces an experimental vignette study to test this hypothesis.
II. THE EXPERIMENT
In this Part, I use an experimental vignette study to examine the effects of traditional gender roles and gender bias in marital asset division within equitable division regimes. After reviewing the experimental subject pool in Section II.A, I describe both the structure and the reasoning behind the vignette’s design in Section II.B. Section II.C presents the results.
A. Experimental Background
For decades, family law scholars have lamented the poor, and often desperate, circumstances in which many women find themselves after a divorce.127 Although these scholars have largely blamed the persistence of traditional gender roles, which lead far more women than men to take a family-related career break, for women’s relative economic disadvantage, they have not considered whether gender bias unrelated to women’s economic choices also plays a role. In this Part, I present an experimental vignette study designed to test the role of gender bias when determining the division of marital assets under an equitable division regime.
As discussed in the prior Part, experimental vignette studies have been frequently used in legal scholarship (albeit outside the family law context) to examine the role of bias. Still, one might question whether data from real-world divorce cases would be preferable to experimentally generated data for the present study. But data from actual divorce cases, as discussed in Section I.A, raise sample selection bias concerns that extend beyond the typical concerns arising in data from other types of litigation. Sample selection bias arises whenever the sample of cases in a dataset is not representative of those types of cases as a whole.128 Data drawn from reported cases always give rise to such concerns since many cases settle outside of court, and even cases that go to trial may not be reported. Yet data drawn from reported divorce cases are particularly concerning since the commonality of divorce has led most jurisdictions to adopt minimal filing requirements, and judicial opinions remain rare except in the most contentious matters.129
More critically, this study is principally concerned with gender bias. Even if aware of their bias, individuals are unlikely to admit that any kind of bias against a historically disadvantaged group motivated a decision.130 Moreover, to the extent that bias is unconscious, then individuals, by definition, would not be able to identify its role in their discretionary decision-making.131 As a result, even the most representative observational data are unlikely to yield much insight into gender bias in divorce settlements.
Thus, in order to test whether gender bias plays a role in divorce property settlements, I recruited 3,022 subjects, all voluntary workers who had previously opted in to complete tasks on Amazon’s Mechanical Turk (mTurk). Workers eligible for participation had to be at least eighteen years old, speak English, and reside in the United States. Upon successful completion of the experimental study, each worker received $1.50 in exchange for approximately fifteen minutes of their time.132 Workers’ demographic characteristics are reviewed in Appendix Table 1; in general, mTurk workers are somewhat younger, but more educated and more likely to be employed than is the average person in the United States.
Although the case has already been made for the appropriateness of an experimental vignette study for the present inquiry on gender bias, the chosen subject pool of mTurk workers might present an additional source of concern. This study asks subjects to divide assets between divorcing male and female spouses; this task is arguably not something that most mTurk workers are accustomed to performing in everyday life. While this concern is certainly valid, several factors serve to ameliorate it. First, to the extent that judges divide marital assets between divorcing spouses in real life, prior research has demonstrated that judges may be susceptible to precisely the same biases as other individuals133—including bias against historically disadvantaged groups.134 Second, perhaps more than any other area of law, it is increasingly common for nonjudicial actors—and even non-legally-trained actors—to negotiate divorce settlements. Divorce mediators are often trained as social workers or psychologists,135 not lawyers, which is not wholly surprising given that the equitable division guidelines neither require legal training to understand nor necessarily benefit from legal training in application, given their vagueness.136 To the extent that assets are divided in divorce by nonjudicial actors, empirical evidence indicates that they, too, are susceptible to the same biases inherent in other individuals.137 In sum, to the extent that mTurk workers do not divide marital assets for a living, they can still provide valuable insights into the biases and intuitions that influence decision-makers who do divide marital assets for a living.
Third, divorce is incredibly common, such that even individuals without legal training are likely to have a personal experience with divorce or, at the very least, be able to relate. Over 80% of individuals will have been married at least once by the age of forty; of these marriages, over one in five will end in divorce by the five-year anniversary, and more than half will end in divorce by the twenty-year anniversary.138 To the extent that workers in the mTurk subject pool have been divorced in the past, or will be divorced in the future, the results will indicate how individuals approach their own divorce negotiations. If individuals harbor gender bias, endorse traditional gender roles, or hold strong views regarding the entitlement of breadwinners to their earnings, they might accordingly demand more or less of the marital property. Fourth, and finally, mTurk workers have been previously and widely used by legal scholars to gain insight into precisely the types of questions of interest here139—that is, how decision-makers make discretionary judgments—including questions on family law.140 Bolstering the validity of using the mTurk worker subject pool is research from the social sciences that has validated their responses against the population more generally.141 With this subject pool in mind, the next Section turns to discuss the details of the scenario presented to these subjects.
B. Experimental Design
In this experiment, 3,022 subjects were randomly assigned to view one of four variations about a couple, Tom and Sandra, divorcing after a long-term marriage. Regardless of the assigned scenario, all subjects viewed the following information:
Tom and Sandra began dating while attending the same college, where both earned an accounting degree in 1997. They married shortly after they graduated from college. Both worked as accountants until the birth of their first child in 2000.
Subjects then viewed one of four experimental conditions, indicated below by the letters A through D. In scenarios A and B, Tom served as the primary breadwinner for the couple, with the spouse who filed for divorce varying.
Scenarios A/B (Tom is the breadwinner):
After college, Tom began working for a large accounting firm, and after steadily advancing in the firm now earns $400,000 per year. After college, Sandra worked for a small accounting firm. Her salary in 2000 was $30,000 per year.
After the couple had a child in 2000, they decided that they could live comfortably on Tom’s income. Sandra left her job in order to focus on raising their child, and she has never returned to work. In 2013, [A: Sandra/B: Tom] began putting on weight. [A: Sandra’s/B: Tom’s] weight gain is not related to an underlying health condition; [A: she/B: he] is simply eating more and exercising less. [A: Sandra/B: Tom] has gained 100 pounds over the past two years. After eighteen years of marriage, [A: Tom/B: Sandra] feels that [A: he/B: she] is no longer attracted to [A: Sandra/B: Tom], and [A: he/B: she] believes a marriage without attraction is unsustainable. [A: Tom/B: Sandra] files for divorce from [A: Sandra/B: Tom], citing irreconcilable differences.
In scenarios C and D, Sandra served as the primary breadwinner for the couple, again with the spouse who filed for divorce varying.
Scenarios C/D (Sandra is the breadwinner):
After college, Sandra began working for a large accounting firm, and after steadily advancing in the firm now earns $400,000 per year. After college, Tom worked for a small accounting firm. His salary in 2000 was $30,000 per year.
After the couple had a child in 2000, they decided that they could live comfortably on Sandra’s income. Tom left his job in order to focus on raising their child, and he has never returned to work. In 2013, [C: Sandra/D: Tom] began putting on weight. [C: Sandra’s/D: Tom’s] weight gain is not related to an underlying health condition; [C: she/D: he] is simply eating more and exercising less. [C: Sandra/D: Tom] has gained 100 pounds over the past two years. After eighteen years of marriage, [C: Tom/D: Sandra] feels that [C: he/D: she] is no longer attracted to [C: Sandra/D: Tom], and [C: he/D: she] believes a marriage without attraction is unsustainable. [C: Tom/D: Sandra] files for divorce from [C: Sandra/D: Tom], citing irreconcilable differences.
All four versions of the scenario then concluded with the following prompt, intended to mimic the instructions to decision-makers in a no-fault, equitable division jurisdiction:
You should assume that you have been authorized by Tom and Sandra’s attorneys to divide their assets, and Tom and Sandra have agreed to abide by your decision.
The couple have net assets valued at $2 million.142 All assets were accumulated during their marriage. The assets are liquid and are easily divisible between Tom and Sandra. The only matter to decide is the division of the net assets of $2 million. All financial and custodial matters involving their child were settled amicably and are separate from the division of marital assets.143
The law in their state requires that you divide the $2 million fairly between Tom and Sandra, but you need not divide the $2 million equally between them.
What percent of the assets of $2 million will you award to Sandra?
Subjects responded with an award to Sandra between 0 and 100 percent of the assets; the software was programmed to quantify this percent in dollar terms for subjects in order to avoid any misunderstandings. Subjects were then asked to rate the importance of several motivations in choosing their award to Sandra on a five-point Likert scale; these motivations included Tom’s education, Sandra’s education, Tom’s anticipated future earnings, Sandra’s anticipated future earnings, the entitlement of breadwinners to their earnings, the value of staying home to raise children, the role of each party in keeping the marriage together, and the role of each party in breaking the marriage apart.144 At the conclusion of the experiment, subjects were asked a series of demographic questions.145
Before turning to the results, several points regarding the experimental design merit further discussion. First, in all scenarios, Tom and Sandra began their marriage with equivalent levels of education and, presumably, equivalent levels of human capital. This choice was designed to convey that the spouses began their marriage in relative equipoise and to minimize any concern about illegitimate motivations behind the marriage (for example, gold-digging).146 Of course, as the marriage progressed, the spouses’ opportunity costs of staying in (or dropping out) of the labor market diverged, as signified by the income gap at the birth of their first child, leading the spouse with the lower opportunity cost to exit the labor market.
Second, in all scenarios, subjects were provided with a reason for the breakdown of the marriage in order to make the scenario more realistic and less ambiguous. Prior experimental literature suggests that subjects might have exhibited ambiguity aversion if no reason other than “irreconcilable differences” had been provided, which could have confounded this experiment’s ability to test for gender bias.147 Still, great care had to be taken in providing subjects with a reason for the marriage breakdown since, as documented in the Wilkinson-Ryan and Baron experiment discussed in Section I.C, decision-makers will punish the party perceived to be at fault, even when explicitly instructed not to punish in a no-fault regime.148 As a result, in all scenarios, the reason for the marriage breakdown was designed such that both parties were arguably at fault. On one hand, subjects might attribute fault to the spouse who gained a substantial amount of weight; on the other hand, subjects might attribute fault to the spouse who actually filed for divorce due to loss of attraction.
Third, the scenarios were designed to test whether subjects demonstrated attachment to traditional gender roles and how subjects translated any attachment into marital asset awards. Given the reliance in prior scholarship on household roles as an explanation for unequal outcomes along gender lines, the experiment most explicitly tests for subject attachment by including two traditional scenarios (A and B, in which the high-earning husband works, and the wife drops out of the labor market to care for their children) and two nontraditional scenarios (C and D, in which the high-earning wife works, and the husband drops out of the labor market). As such, the results will allow for comparison of the awards to breadwinners versus caretakers, to female breadwinners versus male breadwinners, and to female caretakers versus male caretakers. The experiment provides further opportunities to discern the importance of bias towards breadwinners by directly asking subjects about breadwinners’ entitlement and the value of staying home to raise children.
Fourth, and most importantly, the parallel nature of the scenarios will allow for testing across subjects for the presence of gender bias unrelated to the spouses’ economic choices. If gender bias exists against women, then the results should demonstrate that female breadwinners are awarded less than male breadwinners and/or female caretakers are awarded less than male caretakers. Because the scenarios are otherwise identical, any significant difference in asset awards between men and women must be motivated by gender—whether this motivation was conscious or not. The next Section turns to explore subjects’ asset awards in detail.
C. Results
A summary of the results from the experiment described in the prior Section are described below in Table 1. Table 1 presents the percent of marital assets awarded to the breadwinner, by scenario. From the results shown in Table 1, six principal findings emerge, which are discussed in greater detail below.
1. Subjects Attribute Fault to the Filing Party
Although either spouse could have been reasonably blamed for the downfall of Tom and Sandra’s marriage, subjects consistently punished the spouse who filed for divorce, not the spouse who gained weight. In some ways, this result is surprising, given the great deal of research from psychology, economics, and law on weight-based stigma.149 Previous empirical evidence overwhelmingly suggests that overweight and obese individuals are blamed for their weight gain and, as a result, assumed to be “unmotivated, lethargic, unfit, lazy, inactive, sluggish, idle, weak, sickly, [and] loaf.”150 The relevant question for the purposes of this experiment, however, is who is at fault for the divorce—not who is at fault for the weight gain—and subjects consistently blamed the filing party. Subjects’ punishment of the party who filed for divorce suggests that, consistent with Wilkinson-Ryan and Baron’s results,151 subjects took fault into account when dividing marital assets, in spite of the fact that the scenario presented a no-fault divorce attributed to irreconcilable differences.
Table 2 explores this punishment more thoroughly by breaking down the percent awarded to the litigants by filing party. Regardless of how the results are parsed, Table 2 demonstrates that subjects punished the filing party by docking between 6 and 8 percentage points of the marital asset award, with female subjects punishing the filing party more than male subjects. Although male subjects punished the filer by 6.24 to 6.40 percentage points, female subjects punished the filer by 7.62 to 7.72 percentage points.152 To make these figures more concrete in dollar terms, male subjects punished the filer by deducting $124,800 to $128,000 of the marital asset award, while female subjects punished the filer by deducting $152,400 to $154,400 of the marital asset award.153 Although subjects did not view the filing party favorably in their asset division awards, as the next result highlights, they did view the economically advantaged party favorably.
2. Subjects Reward the Breadwinner
Looking back at Table 2, the analysis reveals that subjects consistently awarded the breadwinner more than 50% of the assets. Subjects’ award pattern is consistent with Joan Williams’s argument regarding the strength and the pervasiveness of the “he who earns it, owns it” rule.154 On average, subjects awarded the breadwinner 15 percentage points more of the marital assets than the caretaker, with male subjects awarding more to the breadwinner (18.24 percentage points) than female subjects (11.92 percentage points).155 In dollar terms, this translates to subjects awarding an average of $300,000 more of the marital assets to the breadwinner.156
Subjects’ substantially higher awards to the breadwinner are, on their own, suggestive of their attachment to the norm of breadwinners’ entitlement to their earnings. Moreover, as additional analysis presented in Appendix Table 2 reveals, subjects actually revealed the influence of this norm on their decision-making. Columns 7, 8, and 9 of Appendix Table 2 regress the share of assets awarded to the breadwinner on scenario characteristics, subjects’ demographics, and subjects’ important motivations. As these regressions reveal, subjects who rated the entitlement of breadwinners to their earnings as an important or very important motivation awarded an average of $174,800 more to the breadwinner.157 Although subjects consistently favored the breadwinner in dividing assets, as the next Section will highlight, the gender of the breadwinner also mattered to subjects.
3. Subjects Reward the Male Breadwinner More than the Female Breadwinner
On average, subjects awarded more than half of the assets to the breadwinner, regardless of the breadwinner’s gender. But returning to Table 1, the results also make clear that Sandra’s reward for being the breadwinner (scenarios C and D) was less than Tom’s award for being the breadwinner (scenarios A and B). Table 3 explores this differential further by examining the average award to the breadwinner by the breadwinner’s gender. When Tom was the breadwinner, both male and female subjects awarded him a greater share of the assets than when Sandra was the breadwinner. On average, Tom received 59.81% of the assets ($1,196,200), while Sandra received only 55.18% of the assets ($1,103,600)—a statistically significant difference of $92,600.158 These substantial differences in dollar asset awards to breadwinners along gender lines are displayed graphically above in Figure 1.
The above results also hold in the regression analysis presented in Appendix Table 2, which indicate that Sandra received between $90,600 and $92,400 less than Tom for being the breadwinner, even after controlling for differences in subjects’ demographics and motivations.159
These results are certainly suggestive of gender bias independent of economic choices, although the results may also be consistent with the familiarity of traditional gender roles. In the majority of two-parent, heterosexual households, the male spouse, not the female spouse, continues to serve as the primary breadwinner.160 To the extent that the scenarios in which Tom is the breadwinner reflect that norm, one possible explanation of the gender-based discrepancy might be that subjects found scenarios A and B more relatable. Nonetheless, when one considers the flip side of these results, the role of gender bias becomes clearer.
4. Subjects Reward the Male Caretaker More than the Female Caretaker
Although stay-at-home dads are increasing in number, they remain relatively uncommon: in 2012, only 2 million dads were out of the labor market and serving as the primary caretaker of their children, compared with 10.4 million moms.161 Indeed, dads who undertake significant childcare responsibilities—whether they stay at home or not—continue to express dismay and stigmatization associated with this role.162 The perceived stigmatization of stay-at-home dads might have led to a prediction that Tom would be punished in scenarios C and D, when he dropped out of the labor market to care for his children. But instead, subjects rewarded Tom for being a stay-at-home parent, relative to Sandra.
When Tom was the caretaker, both male and female subjects awarded him a greater share of the marital assets than when Sandra was the caretaker. As Table 3 reveals, Tom received an average of 44.82% of the assets ($896,400) for being a stay-at-home dad, but Sandra received only 40.19% of the assets ($803,800) for being a stay-at-home mom—a difference of 4.63 percentage points ($92,600).163 These differences in dollar asset awards to caretakers along gender lines are displayed graphically below in Figure 2.
Not only do these results negate the popular perception that men are stigmatized for dropping out of the labor market, but they suggest a more general point, explored in the next Section.
5. Subjects Favor the Male Spouse Over the Female Spouse
Whether Tom was the breadwinner or the caretaker, he received an average payout that was relatively greater than Sandra’s. This point becomes particularly clear after reviewing the results in Table 2. Averaged across all scenarios, subjects awarded Sandra less than half of the marital assets, but Tom more than half. The difference is both substantial (4.64 percentage points, or $92,800) and statistically significant at the 1% level. The difference in the average dollar award to Tom and Sandra across all scenarios is further highlighted graphically in Figure 3 above.
Taken together, these results indicate that subjects, on average, exhibited gender bias against the female spouse when dividing marital assets. Subjects awarded the female spouse less than they awarded an identically situated male spouse. Moreover, this result persists even after all scenario characteristics, subject demographics, and subject motivations are taken into account within the Appendix Table 2 regression analysis. Regardless of Sandra’s economic choices, the average subject decided that Sandra deserved less than Tom at the end of their marriage.
6. Male Subjects Favor the Male Spouse More than Female Subjects
How much less Sandra deserved than Tom, as it appears from Table 2, depended on a subject’s own gender. Although both male and female subjects favored Tom over Sandra, male subjects’ preferences were stronger. Across all scenarios, male subjects’ average award to Sandra was 7.58 percentage points ($151,600) lower than their average award to Tom, but female subjects’ average award to Sandra was only 1.84 percentage points ($36,000) lower.164 In fact, even when Tom was the spouse who filed for divorce, male subjects still awarded Sandra an average of less than half of the marital assets.165
This result that male subjects appear to harbor more gender bias than do female subjects is not entirely surprising. Previous work on implicit bias suggests that members of a majority group exhibit the strongest implicit preferences towards themselves. On average, White people hold the strongest implicit preferences for other White people.166 So, too, here do males hold the strongest preferences for other males.
Perhaps then what is more striking about the results is the fact that female subjects harbor any negative gender bias towards Sandra. Because men favor other men, one might naturally expect women to favor other women. Yet this finding that a historically disadvantaged group exhibits bias against itself (albeit less bias than is exhibited by outsiders to the group) is also consistent with prior implicit bias research. Research on African Americans, for example, reveals that they exhibit a small preference for Whites over members of their own race.167 So too here do female subjects exhibit a small preference for men over members of their own gender.
Although the magnitude of the gender bias exhibited by males and females may differ, the fact remains that both genders exhibit at least some bias against women in the divorce setting. Although the subjects analyzed in this experiment are not necessarily legally trained, they nonetheless reveal a consistent tendency to punish female spouses economically. Given the prior research exposing similarities in the biases held by legal decision-makers and the biases held by the population more generally,168 the results of this experiment raise serious concerns regarding the legal system’s impartiality towards women in the divorce setting. These concerns are only heightened by the long history of women’s relative economic disadvantage following a divorce.169 How the legal system can begin to reverse this trend and to rid itself of gender bias in the family law setting is considered in the next Part.
III. EQUALIZING OUTCOMES: OVERCOMING BIAS AGAINST WOMEN
The experiment results presented in the prior Part demonstrate a consistent and sizable bias against female spouses. Subjects awarded a greater share of the marital estate to male breadwinners than to female breadwinners who were otherwise identical. Similarly, subjects awarded a greater share of the marital estate to male caretakers than to female caretakers. The bias exhibited by male subjects was more than three times as large as the bias exhibited by female subjects;170 still, female subjects also penalized the female spouse, even though, in theory, they should have been empathetic towards the female spouse’s position.
Extrapolating these experimental findings to the larger issue—why female spouses continue to be relatively disadvantaged after divorce—the experiment indicates that more than just breadwinner bias may work against women. Judges and mediators may be unconsciously biased towards awarding a greater share of the property to male spouses, regardless of the spouses’ breadwinning status. More disturbingly, lawyers and litigants may not demand as great of a share for female spouses as they demand for male spouses due to gender bias.171 Because litigants are not, for the most part, repeat players in the divorce process, the most promising interventions to counteract gender bias should be directed towards judges, mediators, and lawyers. This Part reviews the interventions that are most promising to reduce both decision-makers’ and representatives’ gender bias, based on prior bias research.
A. Inducing Empathy to Counteract Bias
Perhaps one of the least costly interventions against bias involves reforms designed to induce empathy within decision-makers towards disadvantaged groups. Such reforms have been widely studied within the criminal jury context; these studies typically find that jurors who are able to empathize with the defendant are more lenient towards the defendant.172 The key is to induce jurors to identify the defendant as being like themselves; this feeling of similarity increases jurors’ empathy for the defendant and, in turn, reduces their urge to punish.173 The simplest method of inducing such a feeling of similarity is to ask jurors to imagine themselves in the position of the defendant before making their decision, that instruction alone has been sufficient in the criminal context to induce decision-makers to change—or, at least, to soften—their assessment of the defendant.174 Most relevant to the present Article is the research finding that such instructions induce greater empathy in decision-makers when the defendant is a member of a historically disadvantaged group.175
Along these lines, a straightforward and inexpensive way to address gender bias in the divorce setting might be to provide decision-makers with such an empathy-inducing instruction. Within their equitable division statutes, states could easily add language requiring decision-makers to imagine themselves in the position of each divorcing spouse before rendering a final decision on the assets. States might even explicitly require decision-makers to reflect on whether their asset division decision would change if the gender of each spouse were reversed. Such instructions might be sufficient to prompt decision-makers to reflect on any gender biases they harbor—whether explicit or implicit—and give them a chance to correct for such biases.
In the absence of statutory reform, empathy training courses might also make some progress in counteracting gender bias within the divorce setting. Family law judges, mediators, and lawyers regularly undergo retraining as part of their continuing education requirements; training courses designed to help them identify their biases—and to use techniques such as empathy induction to overcome identified biases—might prove particularly useful. At least one study has demonstrated that judges who are made aware of their own racial bias can subsequently and appropriately correct for it,176 suggesting that a good training session may go a long way.
Such a session would need to begin by helping trainees self-identify their biases since, as several scholars have noted, both judges177 and individuals more generally178 tend “to assume that their judgments are uncontaminated.”179 One self-identification method readily available to trainers180 that has been suggested by prior scholars has been to administer the IAT test—which, although designed to reveal implicit bias, would presumably reveal explicit bias as well.181 For judges, mediators, and lawyers concentrating on family law, the variant of the IAT used would assist trainees in identifying their gender-related biases. After revealing the test results, trainings could then proceed to educate trainees about the prevalence of gender bias generally as well as the long history of women’s economic disadvantage following divorce. Trainees would then be encouraged to use self-reflection and empathy-induction techniques going forward in the practice of family law. Judges and mediators might be encouraged to question whether they would make the same asset division decision if the genders of the spouses were reversed; lawyers might be encouraged to question whether they would represent their client in the same way if the client’s gender was reversed.
Whether through training or through statutory instructions, empathy-induction techniques seem a relatively costless way to counteract gender bias in marital asset division. Still, skeptics may rightly worry whether decision-makers will pay attention to new statutory directives, and whether continuing education trainings can have any meaningful and lasting effect on judges’, mediators’, and lawyers’ everyday practice. For these reasons, additional interventions, discussed in the next two Sections, are likely warranted.
B. Auditing for Bias
Empathy-induction directives will have little effect if judges, mediators, and lawyers ignore them. Particularly for judges and mediators who are responsible for dividing marital assets, introducing a secondary level of review may be one way to identify (and intervene against) the most biased decision-makers. One idea might be to require an automatic second review for bias by an outsider to the case in every marital property division decision—perhaps by another judge or another mediator—almost like an automatic appellate review.182 Yet given the sheer volume of divorce cases, increased second-level review of individual case outcomes would be quite costly to state judiciaries, both from a monetary and a time perspective. Moreover, since many divorcing spouses want to end the process as quickly and as cheaply as possible, implementing a mandatory, second review could actually punish litigants more than protect them.
Arguably, instead of reviewing every case individually, a more efficient way to identify biased decision-makers would be to evaluate systematically a multi-case sample of their decisions. Judiciaries, for example, might implement an auditing process, whereby asset-split by gender is regularly evaluated across a random sample of a judge’s recent cases.183 When using a multi-case sample, auditors would not need to get lost in the details of each individual case; instead, their goal would be to determine whether a judge (or other decision-maker) consistently awarded a substantially greater share of marital assets to male spouses. Decision-makers identified as disproportionately favorable to men might then be targeted for further interventions and training.
Auditing interventions are good at identifying biased decision-makers ex post, and auditing can be a useful step towards improving these decision-makers’ future decisions. Yet auditing, while a cheaper intervention than automatic appellate review, is still costly for jurisdictions in terms of time and money. Furthermore, auditing ex post may be of little comfort to wives who have been awarded a relatively low share of marital assets as the result of a biased decision. Consequently, the final—and most promising—intervention, described in the next Section, is aimed at forcing decision-makers to confront any possible gender bias at the time of decision and to justify disproportionate awards to men in a much less expensive manner.
C. Introducing a Presumption of Equality
The final intervention against gender bias is one that is already in place within thirteen equitable division states184—introducing a presumption of equal asset division. Currently, decision-makers in the thirty-four other equitable division jurisdictions have no numerical starting point, or anchor,185 when dividing assets; they must rely instead on a rather ambiguous set of criteria186 and a (potentially biased) notion of fairness. Such “indeterminate rules,” as Tess Wilkinson-Ryan and Deborah Small have pointed out, may
leave the parties less constrained in their private negotiations and thus better able to maximize their joint welfare. But if the empirical data suggests that the parties are not maximizing joint welfare or that there is a systematic imbalance between them (and it does), we might question the value of indeterminate rules and their utility for the normative [divorce] model.187
As a result, modifying equitable division laws to make them more determinate and definite could help close the economic gap between men and women after divorce.
By establishing a starting point of 50-50 division, most individuals will automatically anchor around that number, which should, by itself, ameliorate unconscious tendencies to award a greater share of assets to men.188 Moreover, the presumption of equality could be further strengthened by requiring decision-makers to justify in writing all property division awards that deviate from the 50-50 default. Such a requirement would force decision-makers to think twice before favoring one spouse over another and to articulate carefully their reasoning whenever they decide to deviate from equal division. Moreover, the cost of this intervention is relatively low; it costs only some extra time from decision-makers—time that will be well spent if it forces decision-makers to confront their gender bias.189
In sum, the equality presumption arguably holds the most potential for counteracting gender bias in divorce settlements, while remaining complementary to the previously discussed empathy-induction and auditing interventions. Whether implemented alone or in conjunction with other measures, an equality presumption with a written justification requirement may serve as an important nudge for decision-makers to correct any biases they harbor towards female spouses.
CONCLUSION
From the time of their advent almost fifty years ago, equitable division laws have disappointed family law scholars. Although these laws were intended to assist women in gaining an economic foothold after divorce, since their passage, women have continued to exit marriages in a state of relative disadvantage when compared to men. To close this economic gap, family law scholars have exclusively focused on legal interventions designed to compensate for the fact that traditional gender roles may render women, as a group, less economically powerful than men.
This Article suggests that the persistence of men as the primary breadwinner within married, heterosexual couples is not the only force to blame for women’s poor outcomes after divorce. Using evidence from an experimental vignette study, the Article demonstrates that decision-makers award a smaller percentage of assets to women, relative to similarly situated men, after the dissolution of a two-parent, heterosexual marital relationship. This finding holds true whether the wife occupies the traditional role of caretaker, or the nontraditional role of breadwinner. Although a wife’s economic contribution to a two-parent, heterosexual household impacts her asset award, so, too, does her gender. Future extensions of this work should examine to what extent these conclusions hold for two-parent, homosexual households.
Family law scholars, by and large, have assumed a position of advocacy when it comes to women and marital asset division. Because women as a whole continue to be economically disadvantaged by divorce—and because this disadvantage shows no sign of improving—scholars have typically taken the normative position that women need additional help in their divorces: help to overcome decision-makers’ bias towards breadwinners, help to overcome women’s focus on caretaking at the expense of their careers, and help to overcome women’s adherence to other traditionally female-dominated roles.190 In advocating for the need to improve women’s economic position after divorce, scholars have inadvertently portrayed women’s current state of economic disempowerment as the result of women’s own choices.
Yet as this Article suggests, women’s own choices are not solely to blame for women’s economic disempowerment after divorce. Family law scholars should no longer ignore the role of bias against women—bias that has nothing to do with breadwinning, caretaking, or conformity with gender expectations. If scholars and advocates truly wish to improve the economic outcomes of female spouses after divorce, they must change their narrative to reflect that not all gender bias stems from men and women making different choices.