No Fault Divorce Law and Equitable Distribution Update

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).

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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?

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B. Cases (in reverse chronological order)

• Scher v. Scher, 2012 N.Y. Slip Op 502 (2d Dept. 2012) – The wife

received 20% of the appreciated value of a business, which the

husband incorporated three years prior to the parties’ marriage.

The Second Department, unlike the trial court, found that the wife

made direct contributions to the business as its bookkeeper for

seven years and indirect contributions as homemaker and

occasional caretaker of one of the husband’s children from a prior

marriage, which enabled the husband to expand the business.

Also, the trial court’s ruling that the husband’s interest in another

business was his separate property was modified by the Second

Department, and the wife received a 50% distributive share of the

value of such business, which it found to be marital property.

• Bayer v. Bayer, 80 A.D.3d 492 (1st Dept. 2011) – The wife

received 35% of the husband’s enhanced earning capacity based

on her economic and noneconomic contributions to his attainment

of a medical license and subsequent lucrative career and her

termination of her career and absence from the job market in order

to maintain the marital household.

• Sadaghiani v. Ghayoori, 83 A.D.3d 1309 (3d Dept. 2011) – In

2001, the parties were married in Iran, where the husband was a

licensed physician. Shortly after the marriage, the wife, pregnant

with the parties’ only child, returned to the wife’s residence in

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Albany County. Subsequent to the wife’s move, the husband

arrived in New York to obtain licensure and pursue his medical

career in New York City, and he sporadically returned to the

marital residence in Albany County. After the husband completed

his residency in New York City, he moved to California in 2008,

and then the wife commenced a divorce action (following a prior

child support proceeding between the parties in 2004 and an

unsuccessful divorce action commenced by the husband in 2005).

The wife, among other relief, was awarded 30% of the marital

portion of the husband’s medical licenses by the trial court. The

Second Department reduced the wife’s award to 10% of the

marital portion referencing that: (i) the husband obtained his

medical degree prior to the marriage and, by the time he arrived in

the U.S., he had already passed some of the examinations required

to practice medicine here; (ii) the wife and husband cohabited for

less than six months in New York; (iii) the husband’s expenses

while living in New York City were paid by his mother; (iv) there

was no evidence that the wife interrupted her career or adjusted her

lifestyle to support the husband and she obtained a Master’s degree

while maintaining full-time employment; and (v) the wife initially

provided some support/assistance to the husband upon his arrival,

plus maintained the marital residence in Albany County, to where

he occasionally returned, and cared for their child.

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• Huffman v. Huffman, 84 A.D.3d 875 (2d Dept. 2011) – The wife

received a 30% share of the husband’s enhanced earning capacity

due to his MBA degree because she made substantial indirect

contributions by supporting his educational endeavors,

contributing her earnings to the family, being the primary caretaker

of the children, cooking family meals and participating in

housekeeping responsibilities.

• Pankoff v. Pankoff, 84 A.D.3d 690 (1st Dept. 2011) – The First

Department affirmed the Supreme Court’s award to the wife of

10% of the husband’s enhanced earning capacity because the

record demonstrated her economic and non-economic

contribution’s to the husband’s license and career during the

marriage (nature of license and career unspecified).

• Rich-Wolfe v. Wolfe, 83 A.D.3d 1359 (3d Dept. 2011) – The wife

received 50% of the value of the parties’ construction and

demolition businesses given her sizable contributions to the

success of such businesses. The wife helped in operating them and

eventually quit her job to work full time for them. The husband

admitted that she ran the office and was the bookkeeper; he

stipulated that she made “substantial direct and indirect

contributions” to the marital estate.

• Charap v. Willett, 84 A.D.3d 1000 (2d Dept. 2011) – The wife

received 10% of the value of the husband’s law practice, where

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she made only indirect contributions to his career and was

employed herself as an attorney for most of the lengthy marriage.

• Massirman v. Massirman, 78 A.D.3d 1021 (2d Dept. 2010) – The

Second Department affirmed the trial court’s award to the wife,

who made only indirect contributions, of 25% of the value of the

husband’s business because she played a minimal role the

husband’s career while continuing her own career.

• P.D. v. L.D., 2010 NY Slip Op 51574U (Sup. Ct. Westchester Co.

2010) – The husband’s 50% share of a hair salon was valued at

$106,000. The wife received a credit for one-half of the $25,000

of the marital funds applied to start the business, plus, in

consideration of both parties’ indirect and direct contributions to

the value of the business, 30% of the value remaining after

deducting the marital funds to start the business. In sum, the wife

received $36,800.

• Haspel v. Haspel, 78 A.D.3d 887 (2d Dept. 2010) – The Second

Department modified the trial court’s award of 50% to 25% of the

husband’s enhanced earning capacity due to his attainment of

“various professional licenses, including, inter alia, several

securities dealer’s licenses and a real estate broker’s license.”

• Robert M. v. Christina M., 2010 N.Y. Slip Op 51766U (Sup. Ct.

Rockland Co. 2010) – During the marriage, in 2001, the husband

purchased a dental practice, including a building, with marital

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funds and a loan, which, to the extent it was repaid, marital funds

were used. Taking into account that the wife had minimal direct

involvement with the practice (which “did little to enhance the

value of the property”), other than as a short term employee, plus

the contribution of marital funds, 35% share of the value of the

business, including the real estate, was awarded to her. Separately,

in 2001, the husband received as a gift a one-half interest in a New

York City dental practice. As no marital funds were spent by the

husband in obtaining his interest and the wife had no direct

involvement in the practice, she was entitled 15% of the

appreciation of the husband’s one-half interest.

• Baron v. Baron, 71 A.D.3d 807 (2d Dept. 2010) – Taking into

account the wife’s minimal direct and indirect involvement in the

husband’s company, and not ignoring her contributions as primary

caretaker for the parties’ children, the wife was awarded 20% of

the value of the husband’s company. The wife’s total distributive

award was $4,566,857.90, which "takes into account the plaintiff’s

minimal direct and indirect involvement in the defendant’s

company, while not ignoring her contributions as the primary

caretaker for the parties’ children, which allowed the defendant to

focus upon his business".

• Kerrigan v. Kerrigan, 71 A.D.3d. 737 (2d Dept. 2010) – 35% of

the value of the appreciation of the husband’s business during the

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marriage was awarded to the wife. The Second Department held

that it was not improper to double-dip on the value of a business.

The length of marriage was not stated. Maintenance was $1,500

per week ($78,000 per year) for 5 years, and there was $1,442.31

per week ($75,000 per year), in child support). While the Second

Department decision did not identify the type of business, the trial

court decision (Kent, J.) described it as “a small company that sells

industrial chemicals”. The company had “minimal fixed assets”

and “almost no inventory”. Both parties’ experts used

capitalization of earnings and excess earnings methods to value the

business. However, the business relied on “prospecting lists”,

which initially were purchased.

• Giokas v. Giokas, 900 N.Y.S.2d 370 (2d Dept. 2010) – The

Second Department affirmed the trial court’s decision to award the

wife 10% of the value of the husband’s businesses (nature of

business unspecified in the Court decision). The wife made no

direct contributions to the husband’s businesses and made only a

modest, indirect contribution to them. During “a substantial

portion of the time in which the husband was involved in the two

businesses, the wife was employed outside the home, and the

parties’ then-teenage children became emancipated.”

• McAuliffe v. McAuliffe, 70 A.D.3d 1129 (3d Dept. 2010) – No

evidence that the husband made any efforts to help the wife attain

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her academic degrees beyond his overall contributions to marriage;

therefore, the husband not entitled to share the wife’s enhanced

earning capacity, if any.

• Jayaram v. Jayaram, 62 A.D.3d 951 (2d Dept. 2009) – Wife

received 35% of the husband’s enhanced earning capacity due to

his M.B.A. and NASD licenses because she made substantial

indirect contributions by supporting the husband’s education,

working full-time and contributing earnings to the household,

being the primary caretaker for their children and taking care of the

household duties.

• Mairs v. Mairs, 61 A.D.3d 1204 (3d Dept. 2009) – The Appellate

Division modified the trial court’s award to the wife of 15% to

25% of the value of husband’s medical practice and enhanced

earning capacity from his medical license. During this long-term

marriage, the wife was the primary caretaker for their 7 children,

managed the household, made economic contributions (at times,

was the primary source) relocated the family from Utah to

Philadelphia and then to New York “for the express purpose of

allowing the husband to pursue his medical studies and obtain his

medical license”, while the husband pursued his medical career.

Additionally, the wife made direct contributions to the medical

practice including managing the practice and assuming

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responsibility for the preparation of all invoices and payment of all

bills.

• Kriftcher v. Kriftcher, 59 A.D.3d 392 (2d Dept. 2009) – The wife

received 10% (modified the trial court’s award of 40%) of the

husband’s enhanced earning capacity from his law license. The

wife made minimal contributions to the degree.

• Guha v. Guha, 61 A.D.3d 634 (2d Dept. 2009) – Court awarded

only 5% of the wife’s enhanced earning capacity to the husband

because he made minimal financial contributions to the marriage,

and he failed to satisfy his burden of demonstrating that he made

substantial contributions to the wife’s attainment of her medical

license in the United States. The wife attended medical school in

India before she met the husband, and after they parties were

married, she passed the United States medical licensing exam,

however, she did so based on her own ability and hard work.

• Peritore v. Peritore, 66 A.D.3d 750 (2d Dept. 2009) – Reducing the

trial court’s award of 40% to 15% of the value of the husband’s

dental practice. The wife pursued her own career on a full-time

basis and made only indirect contributions to the husband’s dental

practice. There were no children of this marriage.

• Wasserman v. Wasserman, 66 A.D.3d 880 (2d Dept. 2009) – 50%

of the value of husband’s businesses (nature of business not

specified in decision).

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• Quinn v. Quinn, 61 A.D.3d 1067 (3d Dept. 2009) – 30% of the

value of husband’s medical practice awarded to wife due to her

indirect contributions as a homemaker and parent.

• Albizu v. Duval, 57 A.D.3d 384 (1st Dept. 2008) – 50% of the

marital portion of the value of the husband’s enhanced earning

capacity due to his dental license, by agreement.

• Wiener v. Wiener, 57 A.D.3d 241 (1st Dept. 2008) – The husband

received 10% of the wife’s enhanced earning capacity due to her

attainment of M.B.A. degree.

• Ciampa v. Ciampa, 47 A.D.3d 745 (2d Dept. 2008) – The wife

received 35% of the value of husband’s business interests (nature

of business not specified in decision) due to her direct and indirect

contributions that she made as the caretaker for the parties’ 4

children, homemaker and social companion to her husband, while

foregoing her career as an attorney.

• Higgins v. Higgins, 50 A.D.3d 852 (2d Dept. 2008) – The husband

was not entitled to a share of the wife’s enhanced earning capacity

due to her bachelor and master’s degrees where he did not

demonstrate that his contributions were substantial. There was no

evidence that he made career sacrifices or assumed a

disproportionate share of the household work. The wife worked

full-time while attending school, paid for some of her educational

costs and was the children’s primary caregiver.

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• Kaplan v. Kaplan, 51 A.D.3d 635 (2d Dept. 2008) – The wife

received 30% of the value of the husband’s dental practice and

license. The award takes into account the limits of the wife’s

involvement with the practice and the attainment of the husband’s

dental license while not ignoring her direct and indirect

contributions.

• Schwartz v. Schwartz, 54 A.D.3d 400 (2d Dept. 2008) – 35% to

the wife of the value of husband’s law practice. Award takes into

consideration that the wife was the primary caretaker for the

parties’ child during the early part of husband’s career and her bad

conduct toward the latter part of the marriage that harmed the

husband’s status at the law firm.

• Schwalb v. Schwalb, 50 A.D.3d 1206 (3d Dept. 2008) – Because

the wife did not have much to do with the acquisition,

maintenance, or increase in value of property owned by the

husband’s business, she received only 10% of the value of said

business.

• Griggs v. Griggs, 44 A.D.3d 710 (2d Dept. 2007) – Taking into

account the wife’s limited involvement with the husband’s medical

practice and her indirect contributions to it, she received 35% of

the value of it.

• Midy v. Midy, 45 A.D.3d 543 (2d Dept. 2007) – Reducing the trial

court’s award of 50%, the Appellate Division directed the wife to

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pay the husband 25% of her enhanced earning capacity as a result

of her Master’s degree in speech pathology. There was no

evidence that the husband sacrificed any career opportunities

during the time the wife pursued her degree.

• Schorr v. Schorr, 46 A.D.3d 351 (1st Dept. 2007) – Because the

wife’s contributions to the husband’s business interests, which

were a substantial portion of the marital assets, were modest, and

taking into account her contributions as a homemaker, the First

Department reduced the wife’s award from 50% to 40% of the

value of the husband’s business interests (nature of business

unspecified in the Court’s decision).

• Pachomski v. Pachomski, 32 A.D.3d 1005 (2d Dept. 2006) – 50%

of the value of the marital portion of the wife’s enhanced earning

capacity awarded to husband who made noneconomic and

economic contributions towards her attainment of a teaching

license during the marriage. The Appellate Division remitted the

matter to the trial court to determine the marital portion of the

teaching license.

• Martinson v. Martinson, 32 A.D.3d 1276 (4th Dept. 2006) – 20%

of the value of the enhanced earning capacity awarded to spouse

arising from the other spouse’s attainment of license to practice as

a physician assistant.

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• Carman v. Carman, 22 A.D.3d 1004 (3d Dept. 2005) – The wife’s

limited contributions to the husband’s attainment of his CPA

license resulted in an award of 20% of the marital portion of the

husband’s enhanced earning capacity to wife. The wife’s

performance of household chores and the creating of an

environment conducive to the husband’s studies were seen as an

overall contribution to the marriage.

• Flanigen–Roat v. Roat, 17 A.D.3d 1093 (4th Dept. 2005) – The

Appellate Division modified the husband’s award of 5% of wife’s

enhanced earning capacity from her medical license to 20%. Wife

graduated medical school prior to the marriage, however, she

participated in a 1 year internship and 3 year residency following

the marriage resulting in the parties’ move from New York to

Michigan during the residency, husband working full time and

performing a larger share of the household tasks.

• Schiffmacher v. Schiffmacher, 21 A.D.3d 1386 (4th Dept. 2005) –

In light of the wife’s modest contributions to the husband’s

attainment of his M.B.A, the Fourth Department modified the trial

court’s award to the wife from 50% to 20% of husband’s enhanced

earnings.

• Holterman v. Holterman, 3 N.Y.3d 1 (2004) – Wife received 35%

of the value of the marital portion of the husband’s medical

license, and the award was based on the following considerations:

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the length of the parties’ marriage (19 years), wife’s employment

and monetary contributions during the husband’s last two years of

medical school, the parties’ decision that the wife would forego her

career to take care of the children and the home, the gross disparity

in the parties’ current and probably future incomes, the parties’

ages (mid-40’s), the husband’s good health and wife’s chronic

health problems.

• Milteer v. Milteer, 6 A.D.3d 407 (2d Dept. 2004) – 35% of the

wife’s enhanced earning capacity awarded to the husband where

her parents paid for her education, she secured credits towards her

degree prior to the marriage, she postponed her education, and

went to school part-time to accommodate the schedules of her

husband and children. However, while the wife obtained the

nursing license, the husband “was the sole monetary provider for

the home and contributed to the parenting of the parties’ children”.

• Miklos v. Miklos, 9 A.D.3d 397 (2d Dept. 2004) – 30% of

enhanced earning capacity due to the husband’s law license that

was determined to be marital property awarded to the wife where

the husband worked full time as a pharmacist the entire time he

attended law school and had a full scholarship to attend law

school; portion of law school degree is the husband’s separate

property because he had completed one full year of law school

prior to their marriage. Also, in view of the parties’ post-trial

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stipulation that all marital assets should be divided equally except

for the husband’s enhanced earning capacity, the wife was entitled

to 50% of the value of the husband’s interest in his law firm after

accounting for the award for the enhanced earnings.

• Cabeche v. Cabeche, 10 A.D.3d 441 (2d Dept. 2004) – The

husband not entitled to any portion of the wife’s enhanced earning

capacity due to her nursing license because his contributions were

de minimis.

• Hiatt v. Tremper-Hiatt, 6 A.D.3d 1014 (3d Dept. 2004) – The

husband’s financial contributions to the household allowed wife to

focus on her title insurance business, thus, allowing him to have

15% of its value.

• Biglin v. Biglin, 2 A.D.3d 380 (2d Dept. 2003) – 10% of the

wife’s enhanced earning capacity (nature of license, degree, or

profession not specified in decision) awarded to the husband.

• Chalif v. Chalif 298 A.D.2d 348 (2d Dept. 2002) – 25% of the

value of the husband’s interest in a neurosurgical practice and his

enhanced earning capacity awarded to the wife. At time of

marriage, the husband had completed all but two years of his

neurosurgical residency; the wife made no direct contribution, only

modest indirect contributions, to the medical practice.

• Cozza v. Colangelo, 298 A.D.2d 914 (4th Dept. 2002) – The

husband awarded 30% of the wife’s enhanced earning capacity

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due to her college degree because he worked a majority of the time

the wife attended college and he paid a portion of the family’s

expenses, he cooked meals, cared for the parties’ children and

preformed housework; 10% of the value of wife’s enhanced

earning capacity attributable to her medical degree although he did

not contribute to the cost of wife’s medical school expenses, he

made minimal contributions to the family’s expenses from his

workers’ compensation income and he assumed more child

caretaking responsibilities; and 0% of wife’s enhanced earnings

due to her training to become an anesthesiologist because he made

no showing that he contributed to her training.

• Wagner v. Dunetz, 299 A.D.2d 347 (2d Dept. 2002) – The Second

Department reduced the trial court’s award to the husband of 50%

to 25% of the value of wife’s medical practice because the

husband continued with his own career and made only indirect

contributions to the wife’s practice.

• Kumar v. Dudani, 281 A.D.2d 178 (1st Dept. 2001) – 22% of the

husband’s enhanced earnings due to his medical training was

marital property, and the wife received 10% of the value of the

marital property in view of the parties’ sporadic cohabitation and

the wife’s lack of support during the marriage.

• Crawford v. Crawford, 279 A.D.2d 281 (1st Dept. 2001) – 50% of

the value of the husband’s medical practice and enhanced earnings

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awarded to the wife due to her substantial non-economic

contributions when the husband was in training.

• Hassanin v. Hassanin, 279 A.D.2d 550 (2d Dept. 2001) –

Undergraduate degree in engineering was marital property and the

non-titled spouse is entitled to a portion (percentage amount

unspecified by the Court) of the enhanced earning capacity.

• Krigsman v. Krigsman, 288 A.D.2d 189 (2d Dept. 2001) – The

wife received 50% (increased trial court’s 25% award) of the

husband’s enhanced earnings due to his training as a pediatric

gastroenterologist; husband received 0% of the wife’s enhanced

earnings capacity due to her attainment of a nursing degree

(reduced trial court’s 25% award). The wife remained at home

with the children while the husband pursued his education and

training and he “played no part” in the acquisition of her nursing

degree.

• Brough, v. Brough, 285 A.D. 2d 913 (3d Dept. 2001) – The wife’s

advanced degree and permanent teaching certificate were obtained

through her own ability and hard work and with minor

contributions from husband both economic and non-economic;

thus, the husband to receive 10% of wife’s enhanced earning

capacity.

• Barbuto v. Barbuto, 286 A.D.2d 741 (2d Dept. 2001) – The Second

Department modified the trial court’s award of 50% to 30% of

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wife’s enhanced earning capacity due to her attainment of an

associate’s degree pursuant to which she became a physical

therapist. Said award is due to husband’s limited role in the wife’s

attainment of said degree.

• Pocchia v. Pocchia, 288 A.D.2d 282 (2d Dept. 2001) – 40% of

enhanced earning capacity awarded to wife due to husband’s law

degree acquired during the marriage.

• Gandhi v. Gandhi, 283 A.D.2d 782 (3d Dept. 2001) – In view of

the facts that substantially all of his effort to attain his CPA was

pre-marital, the wife barely contributed in any meaningful way to

the attainment of his CPA, and instead made overall contributions

to the marriage through her employment and performance of

household duties; and that the CPA is a product of husband’s

intelligence and professional efforts, wife receives none of his

enhanced earning capacity. Also, although court found that a

portion of wife’s paralegal certificate was marital property and that

the husband made economic contributions to her attainment of

such, it would be inequitable to distribute any portion of it to him.

• Jarrell v. Jarrell, 276 A.D.2d 353 (1st Dept. 2000) – The wife

received a portion (amount unspecified by the Court) of the

husband’s enhanced earnings due to his M.B.A. degree.

• Lipsky v. Lipsky, 276 A.D.2d 753 (2d Dept. 2000) – 50% of the

husband’s enhanced earning capacity due to the acquisition of his

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medical license awarded to the wife due to her substantial

economic and non-economic contributions to the attainment of

such and 10% of the value of his medical practice.

• Garrison-Horgan v. Horgan, 273 A.D.2d 846 (4th Dept. 2000) –

The husband received a share (amount unspecified by the Court) of

the wife’s enhanced earning capacity due to her attainment of a

PhD and administrative certificate earned during the marriage.

• Mitnick v. Rosenthal, 260 A.D.2d 238 (1st Dept. 1999) – 25% of

the appreciation of the value of the wife’s practice (nature of

practice unspecified in the decision) awarded to the husband.

• McNally v. McNally, 251 A.D.2d 302 (2d Dept. 1998) – The

husband was awarded 50% of the wife’s enhanced earning

capacity due to her attainment of a master’s degree.

• Matisoff v. Dobi, 242 A.D.2d 495 (1st Dept. 1997) – The wife was

awarded 40% of the value of the husband’s enhanced earning

capacity due to his MBA degree. Wife substantially facilitated the

husband’s decision in “mid-marriage to embark upon the full-time,

demanding course of study…”; and had been “supportive of

defendant’s [husband’s] studies and new career emotionally and

financially, both as a homemaker and as a lender of substantial

funds upon extremely favorable terms for payment of business

school tuition.”

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• Vainchenker v. Vainchenker, 242 A.D.2d 620 (2d Dept. 1997) –

Although the husband was a practicing physician in Russia prior to

the parties’ marriage, his earning capacity was enhanced by the

training in the United States during the marriage. The wife

received 50% of the value of the enhanced earning capacity

because she cared for the parties’ children, provided some

economic support, and to some extent sacrificed her nursing career

while her husband pursued his medical license.

• Lapham, III v. Ruflin, 241 A.D.2d 969 (4th Dept. 1997) – 50% of

the husband’s enhanced earning capacity resulting from his

teaching certification in mathematics awarded to wife.

• Duspiva v. Duspiva, 181 A.D.2d 810 (2d Dept. 1992) – When

defendant was obtaining his degree and certification as a CPA, he

was the main support of the family and pursued his studies without

much help from the wife. She did not sacrifice her career or

assume a disproportionate share of the household responsibilities.

Therefore, the trial court’s 40% award is modified, and no portion

of husband’s enhanced earning capacity was awarded to her.

• White v. White, Jr., 204 A.D.2d 825 (3d Dept. 1994) – Modifying

the trial court’s 15% award, the wife received 50% of the value of

the husband’s interest in his law firm due to the fact that the parties

had a long-term marriage; the wife made financial contributions to

the marriage in its early years and assumed the primary

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responsibility for raising the parties’ children while the husband

pursued his career.

• Patricia B. v. Steven B., 186 A.D.2d 609 (2d Dept. 1992) –

Although the marriage was a short duration, wife received 33⅓%

(rather than 20% awarded by the trial court) of the value of the

husband’s periodontal practice where she worked as an office

manager during a period of rapid growth for the practice.

• Rosenberg v. Rosenberg, 155 A.D.2d 428 (2d Dept. 1989) – The

wife helped the husband pursue his medical career, worked without

pay at his medical practice for six months, and she made

substantial non-economic contributions as parent, spouse and

homemaker, therefore, the wife received 50% of the value of the

husband’s medical practice.

The information set forth in sections II and III was previously included in the NYSBA 2010 Family Law Section Summer Meeting materials: Business and Enhanced Earnings Distributions: The Percentage Trends and Double Dipping at the 10th Anniversary of Grunfeld. The materials have been updated to include more recent cases.