Abstract
Abstract This article suggests an alternative way of thinking about the role of law at the time of divorce. It is concerned primarily with the impact of the legal system on negotiations and bargaining that occur outside the courtroom. One sees the primary function of contemporary divorce law not as imposing order from above, but rather as providing a framework within which divorcing couples can themselves determine their postdissolution rights and responsibilities. This process by which parties to a marriage are empowered to create their own legally enforceable commitments is a form of “private ordering.” Whether or not one accepts the desirability of private ordering, it is clear that most divorcing couples do not require adjudication of their disputes. The article then analyzes how the legal system affects the bargaining behavior of divorcing couples, before presenting a theory of divorce bargaining. It also considers the role of lawyers and courts in divorce.
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