New York divorce law provides for a much more expansive definition of marital property than is found in most other states. The definition applied by New York courts bears little resemblance to traditional concepts of "property" as that term is understood under common law.
In the context of divorce, property is defined as "things of value arising out of the marital relationship." O'Brien v. O'Brien, 66 N.Y. 2d 576, 583 (1985). "Things of value" may be tangible or intangible. Elkus v. Elkus, 169 A.D.2d 134 (1st Dept. 1991). Marital property, as that term is used in the Domestic Relations Law, includes pensions, advanced degrees, and professional licenses that, in other contexts, might not be recognized as "property". New York's Court of Appeals determined that in divorce, a professional license is an item of value subject to equitable distribution because of its value, as well as the money, effort, and lost opportunity for employment expended in its acquisition. More recently, there has been disagreement about whether enhanced earning capacity (even absent a license or a degree) may be considered an item of value subject to equitable distribution. This issue was first decided by the New York courts in a divorce case involving a spouse who acquired celebrity status during a marriage. Golub v. Golub, 139 Misc.2d 440 (Sup. Ct. New York County). The court's determination that celebrity status was subject to equitable distribution was considered by many to be a relatively straightforward application of the principals enunciated by the Court of Appeals in O'Brien.
However, more recent suggestions that "enhanced earning capacity" is subject to distribution, even absent special circumstances such as celebrity status, have generated controversy among New York's matrimonial bar. The concern is that New York divorce law is going to an unsustainable extreme in finding property interests, and that unsuspecting litigants are being unnecessarily forced into costly divorce litigation involving complex appraisals.
The broad definition of marital property under New York divorce law translates into more expensive and complex divorce cases. Perhaps the easiest proactive measure is that chosen by many New York residents - a prenuptial agreement that specifically sets forth each parties' interests, rights, and responsibilities.
Marc A. Rapaport is a New York divorce attorney with 14 years of experience. Mr. Rapaport handles both contested and uncontested divorce and family law cases in New York City. He maintains a full-service law firm based in the Empire State Building, in midtown Manhattan. His firm represents individuals in family law and matrimonial cases throughout the New York metropolitan area. The firm also represents individuals in complex, international child custody disputes. Mr. Rapaport regularly appears in the local and national media, including the National Law Journal, New York Magazine, New York Law Journal, and more. Mr. Rapaport's articles regarding New York divorce have been published in legal journals. Read more about the unique complexities of New York divorce law at http://www.RapaportLaw.com
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