Who Owns A Medical License?

January 10, 1986

Like many wives, Loretta O`Brien dropped plans for her own career to take a job that would help put her husband through college and medical school. Three months after he received his medical license, Michael O`Brien sued his wife for divorce and promptly remarried. Now, New York State`s highest court has ruled that Dr. O`Brien`s medical license is marital property whose value must be divided fairly in the divorce settlement.

The case marks a significant step in changing concepts about what should be included in marital property and how it should be divided in event of divorce.

In many marriages, the most valuable asset a couple has is the husband`s ability to generate income, based on his education, training and professional qualifications. Traditionally, courts have not considered that the wife had a share in this property as a result of helping him acquire it. He retained its full value in the divorce settlement even when he had attained it in part through his wife`s efforts. That`s one reason why men usually experience a sharp increase in income after a divorce, while women and children suffer a major decline.

By considering a medical license to be similar to other joint marital investments, the New York court is pioneering a way to help bring the postdivorce economic status of husband and wife more into balance. It`s a reform that women`s advocacy groups have been pushing for, with only limited results until now.

But the O`Brien case leaves open a number of questions. A medical license, unlike a family business or house, has no market value; how much is Loretta O`Brien`s stake in her former husband`s career worth and how should he be required to pay it? A lower court judge estimated that as a general surgeon, Dr. O`Brien can expect to earn $472,000 more in a working lifetime than an average college graduate and awarded his former wife 40 percent of that sum--$188,000. The high court has ordered the lower court to reconsider how the amount should be calculated.

There are other unresolved issues. What if Dr. O`Brien should decide not to practice medicine but to return to selling shoes, as he was doing when he met his first wife? Would he still owe her a share of his potential earnings as a physician? Can the same principle of marital property be applied to other kinds of professional licenses? To vocational training? To college education in general? How can the contribution of the other spouse be fairly measured?

How will the courts rule when the spouse`s efforts are not so clearly related to the achievement of a license as they were in the O`Brien case?

But certainly when a spouse has helped pay for something, he or she has a claim upon it in a divorce settlement. And in recognizing this as it applies to professional education and licensing, the New York court performed a service.