Judicial Notebook

When a couple is married, there are no laws that address who should hold title to a car, the family home or any other property. But when a couple divorces, the law has a great deal to say about almost every facet of life, including the division of property.

Aside from child-custody issues, the division of property is one of the greatest burdens of the divorce process, mainly because couples generally do not keep records of who owned what before and throughout their marriage. While state laws provide some guidance to judges who may be called on to divide property, many of these decisions are made by couples themselves, sometimes with third-party mediators. With or without a mediator, the couple has more decision-making authority than if the case went to trial, and this allows the couple to come together in a less adversarial setting. By developing their own agreements, people are more likely to follow through on them, and the process reduces the cost and time couples invest in divorces that go to trial.

Differences between husbands and wives

Whether it is a judge or the couple making the decision, a number of psychological factors are likely to be at work, which makes the area of divorce settlements a unique and important topic for psychology researchers interested in decision-making, negotiations and property ownership.

Tess Wilkinson-Ryan, PhD, and Deborah Small, PhD, of the University of Pennsylvania have found that men and women negotiate in different ways: Women often focus more on interpersonal goals, such as their relationships with others, while men focus more on task-specific goals, without the same concern for relationships (Law and Inequality, 2009). Because of this communal orientation, women may be focused on their relationship with their former spouses and more willing to forgo monetary benefits than men are. In addition, research suggests women may be more risk averse than men, which could lead them to accept smaller settlements for fear of what may happen if the case goes to a judge.

Other important research that pertains to property has been on the "endowment effect," which posits that a person tends to value an object more when he or she owns it. Research by Joann Peck, PhD, and Suzanne Shu, PhD, has demonstrated that even perceived ownership can increase valuation. Perceived ownership can come from actions such as touching an object or imagining owning it. In other words, people may feel a sense of ownership of an object even if they do not legally own it, which will lead them to value that object more.

Similarly, Peck and Shu explain that items can be legally owned but be low on perceived ownership. For example, people may feel less loss when they have to give up stocks or retirement accounts than they would if they had to give up cars or household goods because the latter items are more concrete and thus have high legal and perceived ownership. Such valuation fluidity is particularly important in property division settlements when either the couple or a judge is making the decision because these psychological factors could lead certain items to be valued much more or less than other items.

Further study needed

More research, however, is needed to understand the many other psychological factors at play in divorce property-settlement negotiations. Most of the research to date has involved simulated exercises that are not directly related to divorce and do not include the emotional consequences of a divorce. Therefore, psychological studies on property ownership and negotiations may find the divorce situation an interesting and important context in which to test their theories.

"Judicial Notebook" is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).