What Happens in a Divorce When Both Couples Earn the Same?
By Beverly Bird
Digital Vision./Digital Vision/Getty Images
The divorce process begins with an assumption that both spouses contributed equally to their marriage. Even if one partner never worked, the law presumes she contributed in other ways such as by raising the children or caring for the home. A court would not leave her destitute after a divorce because she didn't earn income during the marriage. When both spouses earn the same incomes, the court's duty to untangle incomes and assets becomes easier. When the spouses' earnings have had a similar financial impact on the marriage, courts generally divide assets evenly.
More than 30 states use the income shares formula when calculating child support in a divorce that involves children. The court adds together the incomes of both parents, then designates a percentage of the total for the children’s needs. The non-custodial parent pays a percentage of that number in child support, based on his contribution to the combined incomes. For example, if each parent earns $6,000 a month, or $12,000 combined, the court might say that $2,000 of that should go to the children’s needs. Because the non-custodial parent earns 50 percent of the combined total, he would pay 50 percent of the $2,000 in child support to the custodial parent. The custodial parent would pay her 50 percent, or $1,000, directly toward housing, food and other expenses for the children. In states that do not use the income shares formula, child support is a percentage of the non-custodial parent’s take home pay based on the number of children who need support. In these states, the fact that the custodial parent’s income is equal would have no appreciable effect.
When both spouses earn the same amount of income, alimony or spousal support becomes a non-issue. Every state bases alimony on one spouse’s need for financial assistance and the other spouse’s ability to provide that assistance. Judges can and do consider other factors in addition to this. For example, in Virginia, the court will consider marital misconduct when awarding or denying alimony. However, when one spouse does not require alimony anyway because she earns the same as her partner, there is nothing for her marital misconduct to affect.
In the nine community property states, which at the time of publication include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin, courts divide marital assets 50/50 in a divorce. In the remaining 41 states, property distribution is up to the discretion of the judge. The division is usually close to 50/50 in these states as well, but judges have the right to deviate from an exact split when they feel there is good cause. When both spouses make equal financial contributions to the marriage, the court usually won't stray far from a 50/50 split. However, in the case of Mercatell v. Mercatell, heard by Pennsylvania’s Superior Court in 2004, a judge ordered a 60/40 split in favor of the wife, even though the parties earned the same incomes at the time of the divorce. The husband had chosen not to work through much of the marriage, while the wife worked overtime and extra jobs to pay their bills. What money the husband did earn, he spent on his own pleasures.
Courts will generally only order one spouse to pay the other’s attorney’s fees when the spouse has no money with which to pay for representation. If both spouses earn the same, this would not be in an issue. However, if one spouse deliberately prolongs or complicates the divorce process out of malice or a refusal to abide by orders, the court may order him to reimburse his spouse for the money she had to pay her attorney to defend against his actions.
- Virginia State Bar: Financial Issues in Divorce in Virginia
- Divorce Source: Spouses in Divorce Who Serve as Both Breadwinner and Homemaker
- American Bar Association: Financial Aspects of Marriage (PDF)
- Douglas S. Pinkham: Spousal Support
- The Future of Children: Child Support Guidelines – Income Shares and Percentage of Income
- Nevada Corporate Planners: Community Property Laws and Assets Protection
Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.