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Spouses in Divorce Who Serve as Both Breadwinner and Homemaker
© 2004 National Legal Research Group, Inc.
Equitable distribution is built upon the assumption that spouses make different but essentially equal contributions to the marriage. In particular, when a breadwinner husband works full-time earning income for the family, and a less-employed homemaker wife works equally hard taking care of the children and the home, an equal division of the marital estate is normally equitable.
There are many ways, however, in which the facts of specific cases can deviate from this idealized norm. One of those ways involves the distinction between breadwinner and homemaker. Ordinarily, if one spouse serves as primary breadwinner and the other puts equivalent effort into serving as primary homemaker, the law deems an equal division to be equitable. But what if the same spouse serves as both primary breadwinner and primary homemaker? Does it not stand to reason that such a spouse should receive more than 50% of the marital estate?
A reasonable body of case law reaches exactly this result. A good demonstration is the recent Pennsylvania decision in Mercatell v. Mercatell, 2004 WL 1560515 (Pa. Super. Ct. 2004). At the time of the divorce in Mercatell, both parties were employed. The wife earned $40,000 per year as a county government employee. The husband earned $32,000 per year as a truck driver, but also earned $8,000 per year as an automobile body repairman.
For the majority of the parties' childless 19-year marriage, however, the husband's employment had been sporadic. Indeed, he left no fewer than 14 jobs during the time the parties were married. At trial, he "admitted Wife paid the marital bills and that any money he earned he spent on items such as quads, motorcycles, show trucks, handguns, archery equipment, and hunting and fishing gear." Id. at *3. For much of the marriage, the husband was significantly underemployed, and most of the marital expenses were paid from the wife's income.
Upon divorce, a master recommended an equal division, but the trial court modified the recommendation to award 60% of the marital estate to the wife. The husband appealed, arguing that the award resulted from gender bias. The appellate court saw no evidence of gender bias and considerable evidence that the wife had simply contributed more to the marriage than had the husband:
Husband is not the spouse we sometimes observe who stayed home for 19 years to raise a family and now has few or no compensable skills in today's workplace. The situation here is quite the opposite. In addition to holding a commercial driver's license, Husband was qualified to work as an auto body repairman and had enough skill to work as a carpenter, an electrician, and a plumber. [Citation omitted.] Husband's skills, if put to use, certainly place him in a position to earn more income than he has demonstrated in the past.
In this case, the court placed great weight on the fact that Wife, through her own efforts (working two and three jobs at times), is primarily responsible for building the marital estate. (Trial court opinion, 6/16/03 at 17.) Husband's contributions were significantly less. (Id.) The trial court's decision is not based on gender bias but rather on Wife's significant contributions to the marriage.
Id. (court's emphasis). The court elaborated:
The parties were married 19 years, were close in age, and both were in good health. Both had high school educations and during the marriage lived a middle-class existence. Wife worked full-time, often working two and three jobs at a time. Husband lost approximately 14 jobs and was certainly "underemployed" throughout the marriage. Wife paid for all the marital bills while Husband used his money to buy adult toys. Wife's job provides her with a pension, medical benefits, and other perks. Husband was not working full-time, but the court believed that was by choice.
Given the facts of this particular case, the trial court placed great emphasis on Wife's contributions to building the marital estate valued, by agreement of the parties, at $312,981.86. . . . Examining the equitable distribution award as a whole, we do not find that the trial court abused its discretion when it awarded Wife 60% of the marital property.
Id. Thus, the decision of the trial court was affirmed.
The husband's claim of gender bias was presumably based upon the large number of cases making an equal division, despite the fact that the wife earned less income than the husband. In most of these cases, however, the wife made up for the difference in earnings by making important contributions to home and child care. These contributions essentially substituted for the wife's smaller earnings.
In Mercatell, however, the parties had no children, and the court did not mention any contention by the husband that he had assumed primary responsibility for household tasks. In the absence of evidence that the husband had made significant nonfinancial contributions to the marriage, there was nothing available to offset the wife's greater financial contributions. The result was an award of 60% of the marital estate to the wife.
For additional sample cases making an unequal division in favor of a wife who earned substantially more than the husband, where the husband did not make disproportionate contributions to home and child care, see Farley v. Farley, 51 S.W.3d 159 (Mo. Ct. App. 2001) (proper to award wife $114,092 and husband only $97,641; wife worked full-time and was primary homemaker, while husband was substantially underemployed); Brown v. Brown, 14 S.W.3d 704 (Mo. Ct. App. 2000); Mathew v. Palmer, 8 Neb. App. 128, 589 N.W.2d 343 (1999) (proper to award husband only 30% of marital estate; wife worked and was primary caretaker for children, while husband was unemployed and performed no significant homemaker services); Matwijczuk v. Matwijczuk, 261 A.D.2d 784, 690 N.Y.S.2d 343 (1999) (wife paid all expenses and was primary caretaker for children, while husband was sporadically employed and disappeared during the marriage for months at a time; awarding wife 58% of marital home and all of her retirement benefits); Sade v. Sade, 251 A.D.2d 646, 675 N.Y.S.2d 119 (1998) (where wife was homemaker and sole wage earner, equal division was error; awarding husband only 20% of the marital estate); In re Marriage of Johnson, 138 Or. App. 462, 909 P.2d 185 (1996) (wife worked for 30 years as a teacher and obtained inheritance during marriage, while husband made no serious work efforts and no homemaker contributions; unequal division to wife was equitable); and Sellers v. Sellers, 201 Wis. 2d 578, 549 N.W.2d 481 (Ct. App. 1996) (where wife owned substantial premarital property and was both breadwinner and primary homemaker during the marriage, award of 75% of marital estate was proper).
The theory which underlies these cases has been used on occasion to benefit husbands as well as wives.In Williams v. Massa, 431 Mass. 619, 728 N.E.2d 932 (2000), the trial court awarded 75% of the marital estate to the husband, who was the sole breadwinner and who assumed many of the homemaking and child-care tasks as well. In evaluating the wife's contributions to the marriage, the court noted that the wife had "inexplicably avoided the household tasks she was intended to do." 728 N.E.2d at 942. The end result was that the husband worked full-time, did all of the shopping and cooking, and was clearly the parent most involved with the children. The wife did not work, and spent $6,000 per month on "recreational shopping." Id. at 944. Her only consistent homemaking contribution was doing the family laundry.
Like the husband in Mercatell, the wife in Williams appealed, arguing that the decision below was a result of gender bias. Like the Pennsylvania court, the Massachusetts court sharply disagreed:
We agree that Probate and Family Court judges, making orders for equitable distribution of property and related orders, should not base their dispositions on a minute qualitative examination of the adequacy of the respective spouse's completion of daily chores and activities, or on one spouse's assumption of duties that appear to be outside of stereotypical expectations. So, a husband who likes to, and frequently does, cook should not necessarily be rewarded, nor, similarly, should a wife who neglects from time to time to fold the laundry (or a husband who fails to do the same) be punished.
But this is not what occurred here. As has been explained, the judge found substantial and fundamental failures by the wife throughout the marital partnership. Despite the negative factors on the wife's side of the ledger, the judge nonetheless gave her $1,435,366 of the marital assets and ordered payment to her of an income stream sufficient to enable her, as the judge found, to "maintain the middle income standard of living enjoyed by the parties during the marriage." Our decision cannot logically be said to have a negative impact on women, because it is based on the recognition that justice requires a judge to consider all contributions to the marriage partnership when fashioning an equitable distribution.
Id. The court was more specific in a footnote:
[A] marriage partnership does not rest on financial contributions alone. See deCastro v. deCastro, 415 Mass. 787, 795, 616 N.E.2d 52 (1993); Pare v. Pare, 409 Mass. 292, 297, 565 N.E.2d 1195 (1991). That one party elects to stay at home, however, does not automatically entitle that party, in the absence of credible evidence, to be credited with contributions to the home and child care. We agree with the judge's rationale that a party who works outside the home, as well as performs the bulk of "traditional" homemaking and child care responsibilities, may be entitled to a greater portion of the marital assets, if, after a careful consideration of all of the 34 factors, a judge determines that such a division would be equitable.
Id. at 944 n.12 (emphasis added). While the court did not cite the cases, the best response to the wife's gender bias argument may well be the significant body of case law cited above, awarding more than 50% of the marital estate to a wife who was both primary breadwinner and primary homemaker. Indeed, the balance of the reported cases suggests that the theory has benefited women more often than it hurt them.
A final example of the theory in action comes from the recent Indiana case of Thompson v. Thompson, 811 N.E.2d 888 (Ind. Ct. App. 2004). The parties in that case were both substantially employed. The husband earned $200,000 per year as a corporate vice-president for Xerox; the wife had earned as much as $150,000 per year as a realtor. The parties had two children, who were in high school at the time of the divorce. The wife was clearly the primary caretaker parent, and appears to have been the primary homemaker as well.
Thompson on its face is the sort of fact situation in which an equal division is often made especially because Indiana has a statutory equal division presumption. But facial appearances do not always reflect reality. The wife's ability to earn $150,000 per year was obviously dependent on obtaining assistance in parenting the children, who were in their difficult teenage years. During the pendency of the divorce case, the husband failed to exercise 81 days of his allocated parenting time in 2002, and 54 days during the first five months of 2003. He also fell substantially behind on temporary spousal and child support, and attempted to conceal roughly $75,000 in employment bonuses from the wife and the court. These actions prevented the wife from realizing her full earning capacity, so that her actual income at the time of the divorce was only $66,000.
Due primarily to the husband's actions, the trial court awarded her 70% of the marital estate:
Because of Wife's responsibility to the family and household and Husband's lack of responsibility and his behavior, the court finds that Husband's behavior had caused Wife's income to be depleted over the years. The court further finds that Wife had supported the family financially with the payment of debts as evidenced by exhibits and testimony, and she also provided primary parenting responsibilities for the children. The court also finds that Wife is fifty years of age and Husband is forty-three years of age, and Husband has superior employment to that of Wife with the capacity to earn substantially greater income than Wife over time. The court finds that Wife's income was reduced because of her family responsibilities for the children and household; therefore, Wife should receive seventy percent of the total difference in the marital estate division, with Husband receiving thirty percent.
Id. at 922 (quoting the trial court).
The husband appealed, arguing that the trial court had improperly penalized him for fault, which Indiana law deems irrelevant to the division of marital property. The appellate court affirmed:
We disagree with Jack's characterization of [the above] language as a fault-based finding. The trial court is not contending that Jack should receive less than half of the marital estate because Jack's parental deficiencies render him deserving of such a division; the trial court is awarding Dana a greater percentage of the marital estate based upon her economic condition and earning abilities. See Ind. Code 31-15-7-5(3), (5). The trial court has simply determined that, because Dana is forced to bear the brunt of parental responsibilities, her economic circumstances and earning abilities are hindered. Consequently, Dana is entitled to a greater percentage of the marital estate.
Id. The unequal division was proper despite the wife's facially substantial income:
Dana earned a substantial income through her capacity as a realtor during the marriage. However, the fact that Dana no longer has assistance in providing for the needs of [the children] and the fact that Dana's parental responsibilities are exacerbated by Jack's failure to exercise his allotted parenting time are sufficient to support the trial court's determination that Dana's earning potential has been significantly diminished. The decrease in Dana's yearly salary that corresponds to her increase in parental responsibilities also supports the trial court's conclusion.
Id. at 922-23. Note also that the wife did not receive any form of postdivorce support under Indiana's very limited maintenance statute.
Like the husband in Mercatell, the husband in Thompson chose to spend his income for his own purposes, at least during the final years of the marriage. In both cases, the marital expenses were paid mostly by the wife, with only a minimum of reluctant contribution from the husband. When the wife pays most of the expenses from her own earnings and serves as primary homemaker and child-care provider, an unequal division is significantly likely. This is true even where the husband's earnings exceed the earnings of the wife, if he uses them for his own purposes and fails to pay court-ordered support.
In sum, spouses who both support the family and act as primary homemaker often receive more than 50% of the marital estate. The tendency toward an unequal division is particularly strong when the court senses that the other spouse's failure to contribute results from selfishness or other voluntary choice, and not from simple good-faith lack of skills or earning capacity. Unequal divisions have been made and affirmed in cases involving parties of both modest means (Mercatell) and significant wealth (Thompson), and to the benefit of husbands (Williams) as well as wives. It is therefore one of the more long-standing and consistent fact patterns which justify an unequal division.
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