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Enhanced earnings:  How much is the non-titled spouse entitled to?

Enhanced earnings: How much is the non-titled spouse entitled to?

Enhanced earnings is the value attributed to a spouse who obtained a degree or license during the marriage, because his or her earning capacity is greater due to earning that degree. Thus, where one spouse helped another spouse obtain that degree to enhance his or her earnings, under the concept of equitable distribution, the non-titled spouse is entitled to a percentage of that enhancement.

This concept developed about twenty seven years ago, in the case of O'Brien. In that case the New York State Court of Appeals determined that a non-titled spouse was entitled to half of a spouse's enhanced earnings.

However, recent trends show that a spouse is entitled to 10-20%, and just recently the Appellate Division of the Second Department awarded a Husband only 5% of the Wife's enhanced earnings. (Nidositko v, Nidositko, 92 A.D.3d 653). Judges are looking for direct contributions from the non-titled spouse when determining the percentage of the enhanced earnings to be awarded.

Additionally, when determining the percentage of enhanced earnings to be awarded to the non-titled spouse, if that spouse is also seeking spousal support (maintenance), it is important to understand the concept of "double dipping." This means that a spouse who is seeking maintenance based on the other spouse's income, cannot receive an award which is also based on the spouse's enhanced earnings.

Therefore, it is important to work with an attorney who can best determine what an award of enhanced earnings and maintenance should be. If you want to learn more, contact our office and speak with a lawyer who can help you.


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