The problem lies, Mnookin and Kornhauser explain, in the uncertainty of legal rules. "Indeed, existing legal standards governing custody, alimony, child support, and marital property are all striking for their lack of precision and thus provide a bargaining backdrop clouded by uncertainty."

"The actual bargain that is struck through negotiations - indeed, whether a bargain is struck at all - depends on the negotiation process. During this process, each party transmits information about his or her own preferences to the other. The information may be accurate or intentionally inaccurate; each party may promise, threaten, or bluff. Parties may intentionally exaggerate their chances of winning in court in the hope of persuading the other side to accept less. Or they may threaten to impose substantial transaction costs - economic or psychological - on the other side. In short, there are a variety of ways in which the parties may engage in strategic behavior during the bargaining process."

Opportunities for strategic behavior exist because the parties often will not know with certainty (1) the other side’s true preferences with regard to the allocational outcomes; (2) the other spouse’s preferences or attitudes towards risk; and (3) what the outcome in court will be, or even what the actual odds in courts are. Although parents may know a great deal about each other’s preferences for money and children, complete knowledge of the other spouse’s attitudes is unlikely.

How do parties and their representatives actually behave during the process? Two alternative models are suggested by the literature: (10 a Strategic Model, which would characterize the process as ‘a relatively norm-free process centered on the transmutation of underlying bargaining strength into agreement by the exercise of power, horse-trading threat and bluff’; the (2) a Norm-Centered Model, which would characterize the process by elements normally associated with adjudication - the parties and their representatives would invoke rules, cite precedents, and engage in reasoned elaboration. Anecdotal observation suggests that each model captures part of the flavor of the process. The parties and their representatives do make appeals to legal and social norms in negotiations, but they frequently threaten and bluff as well." [Robert Mnookin and Lewis Kornhauser, "Bargaining in the Shadow of the Law: The Case of Divorce," 88 Yale L. J. 950 (1979)].