The New York Legislature is considering the viability and merit of continuing the long-standing approach of equitably dividing the enhanced earning capacity of a license between divorcing spouses pursuant to its Domestic Relations Law, O’Brien v. O’Brien, 66 N.Y.2d 576 (1985). This article offers some thoughts on whether New York’s Domestic Relations Law should continue to provide to the non-licensed spouse a share in the value of a license acquired during the marriage for the non-licensed spouse’s contributions as a distributive award of property or by some new form of maintenance.
It addresses several questions. First, is there a significant difference in evaluating and distributing the enhanced earning capacity generated by a license recognized as an asset under DRL Sec. 236(B)(5) and evaluating and distributing the enhanced earning capacity of a “career” or” career potential” not generated from an asset? Second, if the current concept of evaluating and sharing the enhanced earning capacity generated by a license between divorcing spouses by a distributive award is to be eliminated, how best does the Legislature craft new language to appropriately provide for that property award to the contributing non-licensed spouse?
