One common bit of misdirection I see when the issue of unfairness in the divorce/custody process is discussed is the argument that men are voluntarily agreeing to the terms. How can the process be unfair if men agreed with the result? Just the other day commenter bonifacii used this argument when discussing the case of Hulk Hogan’s settlement (emphasis his):

…indeed, she got 70% of the money they had in bank (which actually translated to $7M – a pretty modest amount in celebrity divorces), but she got only 40% ownership in his companies (less than half) and no alimony. However this is a moot point because this wasn’t awarded by a judge – it was the result of settlement, and you can settle on whatever terms you want. This seem to be typical in the manosphere – most of the things people got “a case for anger” is something which is either completely made up, or had nothing to do with the law. I’ve been a member of several forums for a while, Lack of credibility is what I see as the main issue with the whole manosphere.

Likewise a commenter at Dr Helen’s blog post on “persons” being imprisoned for failure to pay child support helpfully explained why fathers are almost never granted custody:

Men are much more likely not to ask for custody. They feel culturally the kids would be better off with the mother, or they don’t want the responsibility of full-time raising the kids. Because of the hesitancy to ask for custody, judges have been convinced that the children are better off with mom. So the cycle perpetuates itself. If more dads asked for custody the courts would change their tune.

Now it all makes sense. If men would only ask for custody, they would get it!

This same issue came up in a Huffington Post article titled What are the custody patterns in Washington State? The article discussed data from this 2010 report and details how mothers are given preferential treatment for custody. However, it also notes (emphasis his):

So how were these parenting arrangements decided? Almost 9 out of 10 cases (88%) were decided by the parents themselves. Only 2% were decided by the courts through a trial and another 10% were decided by default. In those cases, decided by the parents themselves, 22% of the parents chose equal time. In the contested and default cases, only 5% of the cases resulted in equal time for both parents.

A reader with the handle Morrisfactor responded to the bolded section in the quote above:

The author might give readers the impression that child custody is amicably decided by the parents in Washington state when this is not really the case. Washington REQUIRES a pre-divorc­e seminar, with divorcees attending separate classes. When I attended, a large sign was prominentl­y displayed at the front door which read: DO NOT FIGHT OVER CHILD CUSTODY, IT WILL HARM YOUR KIDS. Since about 90% of children are in the care of mothers at the start of divorce proceeding­s, this message was clearly directed at fathers. The seminar itself repeated these tenants, along with a healthy dose of “abuse” warnings (all directed at men). I, and other men, left the seminar with the feeling there was no way we would get our kids – as the seminar apparently intended.

As shocking as his experience was, the problem is even more fundamental. Divorce and custody negotiations are what economists refer to as Bargaining in the shadow of the law. From the working paper No-Fault Divorce and Rent-Seeking which I also discussed in my previous post on divorce theft (emphasis mine):

This paper falls in a different strand of the literature that investigates the effect of unilateral divorce on transfers between divorcing spouses from a bargaining perspective. If only one of the spouses wants to divorce, spouses engage in ‘bargaining in the shadow of the law’ (Mnookin and Kornhauser, 1979), where the existing law becomes a threat point for one of the spouses.

This is so obvious it would seem not to need to be stated, but in fact as I have shown it truly does. Men know that the family court process is stacked against them, as do their lawyers. This gives their soon to be ex wife a huge advantage. She knows she shouldn’t settle for any less than what the courts are extremely likely to give her. This is made even worse in the cases where the husband is forced to pay for both sets of legal fees. Given this kind of situation men are being forced to “voluntarily” accept the best compromise they can for themselves and their children. The judicial process doesn’t need to be actually used for the gross injustice to occur.