Two months after obtaining his license to practice medicine in 1980, Michael O'Brien sued to divorce his wife Loretta, who had worked to support them both while he studied and trained to be a doctor. The New York State Court of Appeals has now decided that the medical license earned by O'Brien during his marriage is "marital property" and that his ex-wife is entitled to a portion of it--a share that one lower court calculated to be worth $188,800. The court noted that Loretta O'Brien had sacrificed her educational and career opportunities to further those of her husband, now a resident at a New York City hospital. Contributions like hers, the state high court said, are precisely the kind of "joint effort" that framers of the state's 1980 divorce law had in mind in its provisions regarding the division of property.
The decision has stirred a legal tempest. Harriet Cohen, president of the New York Women's Bar Association, calls it "a major victory for justice and fair play." Philadelphia Lawyer Edward Blumstein disagrees. "The highest court in New York," he says, "has created a legal fiction." In fact, the New York decision is not unique; 13 other states, by statute or court ruling, recognize a spousal property interest in a professional degree. But, asks Harry Tindall, chairman of the family-law section of the state bar of Texas, "if a college professor has tenure, how do you quantify that? Will the New York ruling apply to a plumber's license?"
These and other complex questions have been raised by the widespread adoption of no-fault divorce laws. When the first such legislation was implemented in California in 1970, it was hailed by many for permitting a marriage to be dissolved simply through one partner's decision to do so. It thus promised an end to the unsavory courtroom squabbles in which husbands and wives tried to prove each other guilty of infidelity or mental cruelty. Today some version of no-fault is the law in every state, although most do not permit divorce quite so easily as California.
While the new laws have succeeded in making divorce less traumatic, there are growing com plaints about the way in which they instruct judges to divide assets acquired during marriage. Critics complain that while these laws require a fair division of "property," judges often do not include in that term such intangible assets as future earning capacity, professional education and medical insurance. These assets, they argue, usually benefit the husband but are acquired in part through the wife's sacrifice of her own career opportunities. "Let the wife share in the standard of living that she helped to build," says Stanford University Sociology Professor Lenore Weitzman.