She Who Gets Custody Files First

Margaret Brinig, a law professor at the University of Iowa, has done several interesting studies of divorce law. I especially commend one co-authored with Douglas Allen with the wonderful title, ”’These Boots are Made for Walking’: Why Most Divorce Filers Are Women.” This work was brought to my attention by a comment on a the recent blog, “Divorce Divides Children.”

Brinig’s interesting finding is that “who gets the children is by far the most important component in deciding who files for divorce, particularly when there is little quarrel about property.” Women are much more likely to file for divorce than men – at a rate of two to one in many states. In states in which the mother is presumed to get sole custody of the couple’s children, she is much more likely to file for divorce. Joint custody rules reduce the likelihood that women will file more often than men.

Even more interestingly, joint custody rules make it less likely that either party will file for divorce in the first place. Brinig suggests that this is due, in part, to the fact that divorcing spouses often use custody filings to hurt their soon-to-be ex. Sole custody is a powerful sledgehammer against an ex. Joint custody is more like staying married.

Elizabeth Marquardt makes clear that joint custody does not make it any easier for kids to avoid being divided by divorce, and may make that feeling worse. But the main point is that it would be better for children – and parents – if there were fewer divorces to begin with.

When divorce is even on the table, all the choices are tragic. Margaret Brinig’s research about the effect of custody rules on filing, though, is a help in assessing joint custody as a tool in reducing divorce.