Game Theory is the Study of Choices. One of the more enlightening and somewhat surprising contributions of Game Theory to our understanding of human behavior is that, by and large, choices are rational. Game Theory is a branch of mathematics developed in the latter half of the 20th century that specifically studies the choices that people make in a variety of situations. Initial studies were conducted on choices in parlor games, and thus the name “Game Theory,” but rapidly expanded to the study of choices in conflict, such as war strategy and economics.
A New Book Applies Game Theory to Divorce. There is a brief reference to Game Theory in a book on divorce (The Conflict Paradox by Bernie Mayer), and there are several references to its application in some branches of law, specifically contract and business law. In Game Theory and the Transformation of Family Law, Waldron and Koritzinsky apply Game Theory to analyzing traditional family law and to proposing a bargaining model the improves outcomes for divorcing parties, and to families when there are children.
There are Flaws in the Current Legal System. In family law, it is all too easy to dismiss the apparent irrational behavior of divorcing spouses as a reflection of flaws in their personalities, or at the very least, as reflecting behavior dominated by self-defeating emotions. Yet, most professionals involved with these families intuitively know that there is something else going on- that there may be a flaw in the legal system that seems to make matters worse for these vulnerable families.
Choices and Strategies are Rational in the Current Legal System. Taking this one step further, what if, given the traditional manner in which divorce operates within the current legal system, what appears to be irrational choices are not irrational? What if there is a mathematical proof that the behavior of divorcing spouses is in fact rational- that they are making rational choices and having rational strategies?
An initial response might be: divorcing spouses are not that calculating, but are simply reacting to one another, to their fears, to their guilt and shame, to their anger and to their feelings of hopelessness. This view, however, flies in the face of millions of years of evolution. Natural selection bred humans that are capable of making instantaneous and complex calculations and choices, without knowing exactly what they are doing. Although a quarterback on a football team might not understand calculus, he is nevertheless making instantaneous calculus calculations about mass, angle, force and direction when he throws a pass to a running receiver.
Natural selection favored the early man who could throw a spear or a rock at a moving animal and hit it. The same is true of a parent throwing and catching a baseball with his/her son or daughter. Practice is little more than the brain learning to calculate better. The same is true of divorcing spouses. Although they might not know it, when they make choices, they are making complex calculations as to which choice has the best chance of the most gain, and when choosing strategies (that is, a series of choices), which have the highest chance of an optimal outcome. In other words, their choices are rational.
Current Rules, Legal Outcomes and Objective Goals Promote Rational but Self-Defeating Behavior. When we look at parties to a problematic divorce, we see them making choices that appear to make their lives worse. How could that be rational? The answer lies in two aspects of the legal divorce process. The first is that the legal system sets the rules and defines legal outcomes as goals. The second is that we do not understand the subjective goals of the parties and fail to redirect them to subjective goals with much higher payoff values than objective goals.
Simultaneous Choice Bargaining Sets up a Dispute and Promotes Irrational Behavior. The legal system starts the parties on a path to disputes by making it a game of simultaneous choice. A game of simultaneous choice is one in which one party makes a choice, not knowing what the other party is choosing. As each party meets with his and her attorney, they are asked what outcomes they would like. Do they want the house; what custodial arrangement do they want; what do they want to do about debts; do they want support or not to pay support; and so on? Unless, by strange coincidence, both choose exactly the same desired outcomes, the attorneys have inadvertently set up a dispute- with positions to fight for and win. Strategies for prevailing in such disputes include what we might view as irrational behavior.
Legal Outcomes are not Goals. A simultaneous choice game promotes selfishness (narcissism) and pretends that the legal outcomes are the goals. First, we know from research that the best outcomes in human relationships (and a divorce is a human relationship) occur when there is a balance of narcissism and altruism. In business, this is called coopetition, in which businesses cooperate to grow the pie so that everyone’s piece is bigger and then compete for the biggest slice. Second, legal outcomes are not goals. It is natural for divorce professionals to see them as goals, because for the professional, this means the end of the case and closing the file. A mediator feels successful if the parties reach agreement on a legal outcome. However, the legal outcomes are not the end of the case for the parties. Their lives go on. If they have children, their family goes on. Their financial conditions go on. For them, legal outcomes are tools that shape their futures, not goals.
Short-term Subjective Goals Do Not Have the Highest Payoff. It is natural for divorcing parties, in a state of emotional upheaval, to develop shortsighted and short-term subjective goals. A goal has an expected payoff value. If one has a goal to retire by fifty- five years old, that person has an expectation that retiring has a desirable payoff value. If the expected value of continuing to work was higher, that person would not have the goal to retire. Payoff values are both objective and subjective. An objective goal of retiring would be the time freed up for other activity. A subjective goal might be the desire to leave a job he or she finds meaningless and to volunteer to help struggling students, which will add some meaning to the retiree’s life.
Focusing on Long-term Subjective Goals Has a Much Higher Payoff. In divorce, parties have objective and subjective goals. Sometimes we inadvertently trick them into thinking that the legal outcomes are their objective goals. Often, their subjective goals are shortsighted, like keeping the man the wife is dating out of the children’s lives, maintaining a role as primary caregiver or keeping as much money as possible after the divorce. A typical discussion of the holiday schedule might focus on what seems fair to each party, a short-term subjective goal. However, focusing on long-term subjective goals can have a much higher payoff value and produce substantially better holiday experiences for all.
Lawyers and Other Professionals Should Focus the Parties on Their Long-Term Objective and Subjective Goals. Lawyers and other divorce professionals can help divorcing parties overcome these artificial obstacles. Lawyers can avoid boxing parties into a simultaneous choice game. Instead of asking, “Do you want Mother’s Day,” which could be the start of a simultaneous choice game, a question like, “What do you want to teach your children about Mother’s Day and Father’s Day” starts a sequential choice game and reframes the subjective goal. Instead of suggesting that parties alternate Thanksgiving, a question like, “Are there any family traditions that you would like to preserve around Thanksgiving,” can avoid disputes and enhance payoff values for both parties. Instead of asking, “Are you going to want spousal support,” starting a simultaneous choice game, and likely a dispute, one might ask, “What would you like your financial and career situation to be five years from now,” beginning a sequential choice game focused on long term objective and subjective goals.
Alex de Tocqueville Teaches a Lesson to Divorce Professionals. One of the interesting points Alex de Tocqueville makes in his Democracy in America was the adverse effect slavery had on white men. On a boat on the Ohio River, he had Ohio on one bank (which did not have slavery) and Kentucky on the other (which did). He commented on the industriousness, the pride, the work ethic and the general positive demeanor of Ohioans, compared with the Kentuckians, who would not work for fear of being equated with African Americans. As counter-intuitive as it sounds, getting a large support outcome might lead to a miserable life. Another financial legal outcome designed to accomplish long-term goals might be a springboard to a future with much higher payoff value.
If You Change the Rules (and the Outcomes), You Can Change the Game: This is the Lesson Learned in Waldron and Koritzinsky’s Game Theory and the Transformation of Family Law. When we see amicable parties to a divorce, we think that they are the rational ones. They are, but not for the reasons we might think. They are rational because they resist being seduced into the rules and goals of the legal system, and keep their focus on their long-term objective and subjective goals. They are actually playing the divorce game irrationally by playing their life game rationally. Lawyers can change the legal game simply by changing the rules and by helping parties get or stay focused on their long term life goals, viewing legal outcomes as tools to reach those goals.
 Perhaps this is why we often hear: “In criminal law, we see bad people behaving at their best. In divorce law, we see good people behaving at their worst.”
DR. KENNETH H. WALDRON, PH.D. is a clinical psychologist and partner of Monona Mediation and Counseling. Dr. Waldron has done research and published broadly on topics related to children of divorce. He has presented to and trained groups of judges, lawyers and mental health providers nationwide and internationally, along with appearances on television and radio. He provides forensic services, including custody evaluations and expert testimony on divorce-related issues.
ALLAN R. KORITZINSKY, JD is a retired partner with Foley & Lardner LLP in Madison, Wisconsin. As a family law attorney representing individual clients for over 44 years, Mr. Koritzinsky has focused on divorce law, alternative dispute resolution and works with colleagues in estate and business planning and real estate transactions. Mr. Koritzinsky was listed in The Best Lawyers in America® for over 25 years. Mr. Koritzinsky was the 2011 recipient of the State Bar of Wisconsin Senior Lawyers Division Leonard L. Loeb Award. Mr. Koritzinsky has authored or co-authored numerous articles and books and lectured in lawyer and judicial continuing education seminars throughout his career.
Dr. Waldron and Mr. Koritzinsky are co-authors of Game Theory and the Transformation of Family Law.