Property division in divorce
BY EVE M. BRANK, JD, PHD, AND AMANDA B. HUSSEIN, UNIVERSITY OF NEBRASKA–LINCOLN
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 divi-
sion 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
Psychological studies on property
ownership and negotiations may
find the divorce situation an
interesting and important context
in which to test their theories.
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. n
“Judicial Notebook” is a project of APA Div. 9 (Society for the
Psychological Study of Social Issues).