Say what you will about O’Brien v. O’Brien’s concept of enhanced earnings capacity as a marital asset, the notion of value being ascribed to human capital in the form of academic or professional training is economically and financially accurate and has been recognized by economists for more than two centuries. Nonetheless, the concept of an enhanced earnings capacity as a marital asset subject to equitable distribution has been abolished by New York’s legislature. In contrast, the bastardized concept of duplication promulgated by the Court of Appeals in O’Brien’s great-grandchild,Keane v. Keane, continues to inflict inequity on divorcing business owners. With O’Brien’s legislative repeal, the matrimonial bar should turn its attention to rectifying the inequity of the Keane decision.  This article examines the genesis and inconsistent application of Keane’s duplication approach, demonstrates its financially flawed logic, and proposes strategic alternatives for practitioners in the absence of its repeal.

To read the full article from the Family Law Review, click here.