Recently we have had several clients who have been under the belief that because they are the lower wage earning spouse in the marriage that the majority of the marital assets are the possession of the higher wage earning spouse. Frequently these clients have indicated “my spouse earned all the income and so most of our assets belong to him”. This belief is entirely incorrect according to the Divorce Code.
The Divorce Code is “title blind” with respect to who owns marital property. This means that in a divorce situation it does not matter which spouse’s name appears on the title (to titled property) or who purchased the property. Any asset acquired during the marriage is marital property, subject to equitable distribution by the Court. Additionally, regardless of what party was the greater wage earning spouse, earning more money does not bestow upon that spouse property ownership rights greater than that of the lower wage earning spouse.
The fact is that in a divorce situation any asset acquired during the marriage will be divided by the court with each party being awarded his or her fair share of the value of that property. At the time of the division of the assets the Court must consider numerous factors outlined in the Divorce Code. Such factors include which party is the primary custodian of minor children, which party is the lower wage earning spouse, and which party has the greater ability in the future to earn promotions and increases in their income. Typically the party who is the custodian of minor children, or who is the lower wage earning spouse, will be awarded a greater share of the marital assets.
It is not important which party was the breadwinner in the household. In fact, when determining which party in a divorce situation will be awarded a greater share of the marital assets, the Court will typically look to award a greater share to the lower wage earning spouse. Most of the time the higher wage earning spouse will also be the spouse who has the most assets in his or her name. The higher wage earning spouse needs to be aware that the opposing party will probably fare better at the time of equitable distribution. Lower wage earning spouses in divorce situations need to be aware that they should not agree to any division of assets based upon who earns the most income during the marriage.