Sharing a piece of the future post-divorce: Toward a more equitable distribution of professional goodwill

Nationwide, the law of marriage and divorce is engulfed in a storm of contr oversy over how to redress the widely lamented injustices which often follo w divorce and how to achieve better economic parity between ex-spouses. In this Article, Professor Alicia Kelly examines how the treatment of goodwill in a professional practice reflects and influences this ongoing debate. Th e Article emphasizes that many courts have subtly transformed the classic c oncept of goodwill-which is an asset of the business-to include the unconve ntional concept of "personal" goodwill-an asset of an individual. Professor Kelly explains that judicial acceptance of personal goodwill acknowledges that the intangible career advantage of a professional reputation, possesse d by and inseparable from an individual, is valuable and attempts to reappo rtion that value so that both spouses share its benefits. She argues, howev er that courts have not candidly acknowledged what they are doing and inste ad cloak their actions in the language of conventional goodwill. Professor Kelly insists that the principles underlying the inclusion of personal good will should be explicitly pronounced, as their exposure invites discussion and examination on their merits which is essential to the legal process. Ad ditionally, she argues that misapplying goodwill theory, and particularly i ts valuation, creates inequities of its own by increasing the risk of inacc urate and unpredictable results borne by one spouse or the other. Ultimatel y, Professor Kelly proposes that rather than manipulating ill-fitting valua tion methods, courts should award the supporting spouse a share of the futu re he or she has earned: a percentage ownership interest in the future inco me stream of the business generated by goodwill.