MARITAL PROPERTY FOR PURPOSES OF EQUITABLE DISTRIBUTION UNDER NEWYORK LAW

New York law defines marital property much more broadly most other jurisdictions. The definition applied by New York courts certainly goes far beyond traditional property concepts under common law. Marital property is broadly 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). Indeed, marital property, as that term is used in the Domestic Relations Law, includes a variety of things, such as pensions, advanced degrees, and professional licenses that, in other contexts, might not be recognized as "property".

New York's Court of Appeals determined that that 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. O'Brien, 66 N.Y.2d at 586.

More recently, there has been disagreement about whether enhanced earning capacity (even absent a license or a degree) may be deemed an item of value subject to equitable distribution. Initially, this issue was decided in the context of a spouse who acquired celebrity status during a marriage. Golub v. Golub, 139 Misc.2d 440 (Sup. Ct. NY County 1988). 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.