Litman v. Litman
| Decision Date | 31 May 1983 |
| Citation | 463 N.Y.S.2d 24,93 A.D.2d 695 |
| Parties | Eugene LITMAN, Respondent, v. Phyllis LITMAN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Jonas, Libert & Weinstein, Garden City (Kenneth J. Weinstein and Richard C. Goldberg, Garden City, of counsel), for appellant.
Solerwitz, Solerwitz & Leeds, Mineola (Barbara J. Simon, Mineola, of counsel), for respondent.
Before MOLLEN, P.J., and WEINSTEIN, BROWN and RUBIN, JJ.
This appeal presents the question of whether a spouse's law practice is subject to equitable distribution upon the dissolution of a marriage. Special Term held that a law practice is not a proper subject for equitable distribution, and consequently denied the defendant wife's application for funds to enable her to retain experts to determine the value of her husband's law practice. In its decision (Litman v. Litman, 115 Misc.2d 230, 453 N.Y.S.2d 1003), the court stated that since a lawyer is enjoined by the Code of Professional Responsibility of the New York State Bar Association from selling his or her practice (see 22 NYCRR 691.2), it is unfair to subject the practice to equitable distribution upon dissolution of the lawyer's marriage. We disagree.
The Equitable Distribution Law (Domestic Relations Law, § 236, Part B) was enacted in recognition of the fact that marriage is, among other things, an economic partnership and, upon its dissolution, property accumulated during the marriage should be distributed in a manner which reflects the individual needs and circumstances of the parties regardless of the name in which such property is held (Governor's Memorandum of Approval, McKinney's 1980 Session Laws of N.Y., p. 1863). With this end in mind, the Legislature established the "distributive award" (Domestic Relations Law, § 236, Part B, subd. 1, par. b) to cover situations where a division of the actual marital property between the spouses is impracticable, impossible, or illegal (Domestic Relations Law, § 236, Part B, subd. 5, par. e). In such situations, the court may award a sum of money in lieu of an actual distribution of property. That the Legislature established the distributive award to cover situations such as in the instant case is made clear to us by the statutory language:
"In any action in which the court shall determine that an equitable distribution is appropriate but * * * where the distribution of an interest in a * * * profession would be contrary to law, the court in lieu of such...
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...control, may never practice their professions". In this regard, it might appear that the conclusions of the court in Litman v. Litman, 93 A.D.2d 695, 463 N.Y.S.2d 24, affd. 61 N.Y.2d 918, 474 N.Y.S.2d 718, 463 N.E.2d 34 are in conflict with our holding in the case before us. However, in Lit......
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...resulted from his obtaining the master's degree in business administration (cf. Ahern v. Ahern, 94 A.D.2d 53, 463 N.Y.S.2d 238; Litman v. Litman, 93 A.D.2d 695, 463 A.2d GULOTTA, Justice (concurring in the result only). Although I agree that the order appealed from should be modified and th......
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