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O'Brien v. O'Brien: A Failed Reform, Unlikely Reformers

40 Pages Posted: 29 Aug 2006  

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

Date Written: September 10, 2006

Abstract

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.

Keywords: Marital Property, O'Brien, Divorce,

Suggested Citation

Ellman, Ira Mark, O'Brien v. O'Brien: A Failed Reform, Unlikely Reformers (September 10, 2006). Available at SSRN: https://ssrn.com/abstract=926860 or http://dx.doi.org/10.2139/ssrn.926860

Ira Mark Ellman (Contact Author)

Arizona State University College of Law ( email )

Box 877906
Phoenix, AZ
United States
480-965-2125 (Phone)

HOME PAGE: http://www.law.asu.edu/HomePages/Ellman/

Arizona State University (ASU) - Department of Psychology ( email )

950 S. McAllister Ave
P. O. Box 871104
Tempe, AZ 85287-1104
United States

Center for the Study of Law and Society, Berkeley Law, University of California, Berkeley ( email )

Berkeley, CA 94720-2150
United States

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