New York's highest court has just raised the financial stakes in divorce. In a decision attracting wide attention around the country, it took a long step toward endorsing the concept of marriage -- including its earnings potential -- as a true economic partnership, in which homemakers are the equal of partners who contribute dollars and cents.
Under this approach, an "I do" means that the partners effectively invest in each other's future. If the marriage dissolves, each partner -- including a nonworking spouse -- is entitled not only to a share of the money on hand but also a share in the value of the other's financial future.
So far, this theory has chiefly been applied to the future earnings of well-paid professionals, such as doctors. But as time passes and a wider variety of cases come to court, it also could be applied to other types of licenses, and -- in theory -- even to the expectation of corporate career advancement.
In the New York case, the investment was a medical degree. Loretta O'Brien worked while her husband, Michael, went to medical school. Soon after he was licensed the marriage fell apart. Michael was willing to repay Loretta the money that she contributed to his career, which he estimated at $13,000 to $25,000. But Loretta said that wasn't fair.
If she hadn't supported him, Michael would not have had a medical degree at all. She had made sacrifices in her early years in the expectation that when her husband started his practice, she would come into her reward. Loretta said that Michael's medical degree was partly her property, which she had worked to earn.
The court agreed, joining a handful of other states (among them, Michigan and Iowa) that now treat the value of professional degrees as a form of property that should be divided between the spouses.
But Albert Emanuelli, attorney for Loretta O'Brien, says that New York went further than other states. Apparently for the first time, he says, a top state court has declared that such a wife owns a share in her husband's earning power even if she didn't work while he went to school.
"In the past, if you couldn't show a dollars-and-cents contribution, there was no reimbursement," Lenore Weitzman, author of "The Divorce Revolution," told my associate, Virginia Wilson. And outside of New York, this standard probably still applies. It's still the luck of the state, and of circumstances, how a divorcing wife will be compensated.
But as the law on marital property evolves, it is quite possible that the New York decision will be favorably received in other courts. It represents the general direction in which divorce laws have been moving for some years.
At present, the law on getting a share of a professional spouse's future earnings looks roughly like this:
In several states (including Arizona and Minnesota), wives have been reimbursed for the money they invested in their husbands' professional education, but denied any share in the future value of those degrees. In a state like Georgia, wives who "put hubby through" can be awarded higher alimony or maintenance payments (but only if they qualify for alimony in the first place, and they often don't).
Wives in Colorado and Texas might be compensated if there's enough property to cover the award. But where the couple has accumulated little property, which is often the case, the wife cannot collect her reward out of her husband's future earnings. At least five states don't consider professional degrees part of the marital property at all.
The notion of a property right is very important here. If an ex-wife is entitled to reimbursement only through alimony, she may get nothing at all. She might not qualify for alimony; if she does, her ex-husband might not pay it; and if she remarries, it stops.
But if she has a property right in his earning power, she is entitled to the money, period. She walks away from the divorce with the present, estimated value of his future earnings. If she accepts a note for the money owed and her husband doesn't pay, she generally will find that note easier to enforce than an alimony award.
And, of course, what's sauce for the gander is sauce for the goose. Women supported through law or medical school by their husbands might find, at divorce, that they owe money to them.