How Do Judges Decide Divorce Cases?: An Empirical Analysis of Discretionary Decision Making

Abstract

Judges today have more discretion in divorce cases than in any other field of private law.Although the extent of judicial discretion at divorce is highly controversial, little information on the results of discretionary decision making has been available.In this Article, Professor Marsha Garrison describes and analyzes the results of an empirical study of judicial decision making in New York during the decade following the adoption of a new divorce law that expanded judicial discretion and changed the legal standards governing alimony and property distribution at divorce.She reports evidence supporting both discretion's critics and its champions: Some types of decisions made by judges were highly predictable and quite consistent with the statutory madate; others were altogether unpredictable, or evidenced the intrusion of private values into the decision-making process.In interpreting these results, Professor Garrison concludes that discretionary decision making was influenced by the relative clarity and novelty of the governing statutory provision, as well as social and public opinion trends.Based on the research findings, she makes a number of reform proposals aimed at striking a better balance between rule and discretion in divorce decision making.