New York Maintenance Laws: Commission Recommends Fairer Treatment For Professionals


Professionals in New York may soon assume “full ownership” of their careers if legislators enact the state Law Revision Commission’s recommended changes to the New York maintenance laws.

At present, a professional degree or license held by a party to a divorce in the state of New York is considered marital property if that degree or license was earned during the marriage.

Accordingly, a court must determine the anticipated income that license or degree will generate for the duration of the professional’s career. This figure is referred to as enhanced earning capacity and the professional’s spouse may be entitled to up to half of it in a division of property, an award that could not be modified if the professional’s career circumstances change in the future.

Known as the O’Brien precedent, this New York maintenance law has long been subject to criticism, and while the Commission was not specifically charged with reviewing it, many members found it important enough to address nonetheless.

O’Brien is “an anomaly and bad law,” according to Commission chairman Peter Kiernan, quoted in a recent Wall Street Journal interview. Kiernan’s assessment is based in part on the Commission’s findings from a survey issued to more than 7,000 New York attorneys as well as direct discussions with judges.

“Valuing a degree or license for the purpose of equitable distribution has become very litigious because of its intangible nature, the speculative nature of its value, the costs associated with valuations, and problems of double counting the increased earnings in awards of post-divorce maintenance and child support,” said Chad Jerome, an Albany divorce lawyer. “The old adage after O’Brien was to make sure you get your degree or license before you say ‘I do’ so if your spouse asked for part of your degree/license you could tell your spouse ‘I don’t.'”

The overwhelming dissatisfaction noted in the Commission’s report leads Jerome to believe the troublesome precedent will eventually be repealed by statute leading to a revised New York maintenance law.

In the event that O’Brien no longer controls, the Commission recommends that enhanced earnings only be considered for post-divorce maintenance, with the court ascertaining actual spousal contributions to the professional’s career potential to determine what, if anything, the spouse would be entitled to.

Furthermore, maintenance is subject to future review should a professional’s circumstances change, a welcome departure from the current, rigid property award.

While a repeal of O’Brien would be embraced, it may only marginally reduce the amount of litigation focused on the valuation of and eventual distribution of earnings related to the degree or license.

“I still believe that there will be valuations of the degree, although perhaps less formally, to determine the enhanced earnings from the degree or license for purpose of post-divorce maintenance awards,” Jerome said.

Regardless of your state of residence, if you are a professional considering divorce, you should consult with a licensed domestic law attorney who can advise you on what impact your degree and/or license may have on a potential property division or maintenance award.

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