O'Brien v. O'Brien: A Failed Reform, Unlikely Reformers
Ira Mark Ellman
Arizona State University College of Law; Arizona State University (ASU) - Department of Psychology; Center for the Study of Law and Society, Berkeley Law, University of California, Berkeley
September 10, 2006
The 1985 judgment in O'Brien v. O'Brien, holding that a medical license was marital property, is probably the most well-known family law decision ever rendered by the New York Court of Appeals. But despite the enthusiastic reception it initially received from many reformers, it has been a spectacular failure. Not only has it been rejected by the courts of every other state, but its legislative repeal has been sought by mainstream New York bar associations, and its abandonment recently recommended by a commission appointed by the Chief Justice who originally championed it. This essay, a condensed version of which will appear as a chapter in the forthcoming book Family Law Stories, traces the history of the case to learn why New York, which had been among the most conservative states in the nation in its treatment of marital property, became the only state to adopt this revolutionary view. The answer appears to be a combination of political will with a peculiar New York legal provincialism that led both the court, and leading New York commentators, to misperceive the very ordinary provisions of the state's new equitable distribution law as unique and radical. Relying on a close examination of the record, contemporaneous newspaper accounts, and interviews with some of the principals, the essay also uncovers previously unknown parts of the O'Briens' story that suggest that while the decision was more unjust than most legal scholars have assumed, its full effect was avoided by a secret settlement that reduced its impact on the O'Briens.
Number of Pages in PDF File: 40
Keywords: Marital Property, O'Brien, Divorce,
Date posted: August 29, 2006
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