§ 9.01 States with Express Statutes

• Jurisdiction: United States
• Publication year: 2021

§ 9.01 States with Express Statutes

During marriage, one spouse sometimes completes a portion or all of the education and training required to become a licensed professional, such as a lawyer or medical doctor. A few states have enacted specific statutes to direct how a divorce court should respond to this situation in determining whether such a license is property divisible at divorce.

A North Carolina statute, for example, provides that a professional license is the separate property of the owner, regardless of when the license is acquired.¹ A professional degree is not mentioned, and it is unclear whether the reference to "license" is intended to encompass the degree, although one court has construed the statute in such a manner.² Professional degrees and licenses present the same characterization issue, so presumably both a license and a degree are separate property in North Carolina.

The California provision is much more detailed.³ The spouse's education, training, and increased earning capacity is impliedly designated the separate property of the professional spouse. Detailed rules for reimbursement are set forth, however, so the marital estate can, in some instances, recover marital funds expended to pay for a spouse's education, if the education increases the spouse's earning capacity. The amount reimbursed may include interest from the date the support was provided. The reimbursement right can be reduced or eliminated if the marital estate has already benefited from the educated spouse's increased earning capacity.⁴ In addition, although the educated spouse's increased earning capacity is separate property, the court can consider it when awarding alimony.⁵ These rules can be varied by a written agreement.

The California scheme is imprecise in some respects. Surprisingly, the types of expenditures that are reimbursable are not expressly set forth. The statute provides that "contributions to education or training" should be reimbursed.⁶ Expenses for tuition and books clearly can be reimbursed. It is unclear whether the living expenses before graduation of the educated spouse, or of both spouses, would also be included.⁷

The California statute applies only if the education "substantially enhances" the earning capacity of the spouse. One California court held that this was not established in the case of a man who was a police officer and also attended law school during marriage. At divorce, the husband was in his last year of law school, his grades were low, and he stated he did not intend to take the bar exam.⁸

One court granted a right of reimbursement where a spouse went to medical school before marriage but repaid school loans during marriage.⁹

An Indiana statute permits a divorce court to award a money judgment to the supporting spouse in the amount of the cost of tuition and books for the educated spouse, if there is little or no marital property at divorce.¹⁰

Oregon enacted the most expansive statute regarding professional training. The statute stated that "the present value of . . . the future enhanced earning capacity of either party" may be included in the marital estate, if the nonprofessional spouse made a "material contribution to the enhancement."¹¹ In the first case to construe this statute, the court of appeals concluded that the nonprofessional spouse was not entitled to an award when she did not alter her own career plans, and did not work outside the home for a substantial period.¹² The Oregon Supreme...