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- I. No Fault Divorce Law
- A. No-Fault Divorce, Defenses, Pleadings, Independent Actions, N.Y.L.J., Nov. 30, 2010, by Elliot Scheinberg
- B. No Fault Clear and Simple, N.Y.L.J., Dec. 3, 2010, by Sondra Miller
- C. No-Fault Divorce and Due Process, N.Y.L.J., March 3, 2011, by Timothy M. Tippins, Journal
- D. Jurisdiction, Due Process and No-Fault Divorce, N.Y.L.J., March 14, 2011, by web-editor@nylj.com, Special to the New York Law Journal
- E. Further Discussion of No-Fault Divorce and Due Process, N.Y.L.J., March 16, 2011, by Elliot Scheinberg, Sondra Miller and Andrew Schepard
- F. Woman Wins Divorce After Trial in No-Fault Dispute, N.Y.L.J., January 26, 2012, by Joel Stashenko
- II. Equitable Distribution: Application of Enhanced Earning Capacity and Distribution of Value of Businesses and Professional Practices
- A. The spouse seeking the distributive award of the enhanced earning capacity or an interest in a business or professional practice must demonstrate that he/she made a substantial contribution to the title-holding spouse’s acquisition of the license and/or degree or the business interest; it is not an overall contribution to the marriage analysis. See Evans v. Evans, 55 A.D.3d 1079 (3d Dept. 2008); see also Fleischmann v. Fleischmann, 24 Misc.3d 1225(A) (Sup. Ct. Westchester Co. 2009) (wife received 10% of the martial component of husband’s law license and 25% of the value of husband’s law firm partnership interest because wife’s contributions were overall contributions to the marriage and husband’s attainment of his partnership interest was due to him “having worked long hours with thousands of billable hours leading to a steady rise to partner”.)
- B. The degree and/or license must be shown to have enhanced the earnings of the title-holding spouse. See Pudlewski v. Pudlewski, 309 A.D.2d 1296 (4th Dept. 2003).
- C. Awards are limited when the Court determines that a spouse’s attainment of a degree or professional license or business interest is more directly the result of the titled spouse’s own ability, tenacity, perseverance, and hard work. See Farrell v. Cleary-Farrell, 306 A.D. 2d 597, 599-600 (3d Dept. 2003).
- D. Academic degree or license to be valued does not have to confer a legal right to engage in a particular profession. See Jayaram v. Jayaram, 62 A.D.3d 951 (2d Dept. 2009) (husband unsuccessfully argued that wife was not entitled to a share of his enhanced earning capacity because his M.B.A. degree was not an actual prerequisite to his employment at the brokerage firm where he worked).
- E. A license or academic degree has value when it enhances the earnings of the titled spouse. Such enhancement of earning capacity occurs when the training or work that gave rise to it is finally completed, and not at the time when the actual certificate, degree, or license is conferred. See McGowan v. McGowan, 142 A.D.2d 355, 356 - 357 (2d Dept. 1988) (holding that the wife’s teaching certificate conferred after marriage reflected achievements prior to marriage and therefore teaching certificate is not marital property).
- III. Percentage Awards from 1989 – 2012
- A. Discussion points
- 1. It is a basic tenet of equitable distribution that equitable does not necessarily mean equal. Two marital asset where this often appears to be the case are a spouse’s enhanced earning capacity and interest in a business or professional practice.
- 2. Is there an actual downward trend in the amount of the enhanced earning capacity and business interests awards made by Courts or have recent Court decisions misled practitioners to the conclusion that the enhanced earning capacity should be distributed at lesser portions than other marital assets?
- 3. Did the decision in Mairs v. Mairs, infra (at page 10), stir discussions about a downward trend?
- B. Cases (in reverse chronological order)
- A. Discussion points
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