After the trial court issued a proposed statement of decision that awarded G.C. a 28.47 percent interest in the appreciation in the value of the residence based on his <mask> contribution to the down payment, R.W. filed a written objection in which he raised the same argument that he raises on appeal. During a hearing on R.W.'s objection, the trial court stated that "the better way [to divide the appreciation] was the Lucas case way," and overruled the objection. It is not entirely clear from the court's comments whether the court applied Lucas (rather than § 2581 ) in concluding that the joint title community property presumption was rebutted, or whether the court simply "borrowed" the Lucas formula for dividing appreciation without making any determination as to whether the community property presumption had been rebutted. The absence of any mention in the court's statement of decision suggesting that the court found that the joint title presumption had been rebutted suggests the latter. In either case, the trial court erred.


By Acquisition of Mining Property.—According to Jacobson v. Bunker Hill etc. Min. Co., 3 Idaho, 126, 28 Pac. 396, it is held that mining property acquired by a married man under the laws of the United States is community property. But the supreme court of Washington has disapproved the Idaho decision, and held that a locator’s interest in a mining claim is his <mask>: Phoenix Min. etc. Co. v. Scott, 20 Wash. 48, 54 Pac. 777, citing Black v. Elkhorn Min. Co., 163 U. S. 445, 16 Sup. Ct. 1101, 41 L. Ed. 221, which was decided subsequently to the Idaho case. A locator of a mining claim has no such *61interest therein after a conveyance and abandonment thereof that the community interest of his wife attaches: McAllister v. Hutchinson, 12 N. M. 111, 75 Pac. 41.


the enumerated categories of each spouse’s <mask>.15 In sum, we agree with the trial court that the F&S stock does not fall under the category of “employment benefits” as defined by the PMA and is not otherwise specifically addressed in the PMA. Accordingly, the PMA does not alter the characterization of the F&S stock and, likewise, does not rebut the statutory presumption that the F&S stock is community property.


The trial court found that the deposit of husband’s post-separation wages into the PDP account that, pre-separation, contained marital property, represented a commingling of <mask> with marital property. See Code § 20-107.3(A)(3)(d) (“When marital property and separate property are commingled by contributing one category of property to another, resulting in the loss of identity of the contributed property, the classification of the contributed property shall be transmuted to the category of property receiving the contribution.”). The trial court then concluded that the post-separation deposits to the PDP account were transmuted to marital property because, once deposited, the funds were not “retraceable.” Id. Husband does not challenge this portion of the trial court’s ruling, stating on brief that his presentation of evidence and argument regarding “the use of marital funds was not an attempt to trace separate property for classification purposes, but to provide support for [h]usband’s argument that granting [w]ife’s motion to alternately value the PDP account was an abuse of discretion.” - 21 - totaling nearly $1 million.” (Emphasis added). Clearly, contrary to husband’s assertion on brief,


Judge Gallagher determined the parties "discussed, negotiated, and agreed to" the provision of the PMA waiving spousal support and making custody provisions. She found the PMA "expressed [the parties'] desires at the time of execution. The prenuptial agreement likewise disclosed each party's <mask>. While these disclosures were not perfect, the level of disclosure of each sides [sic ] assets and liabilities was fair, reasonable, and full." Judge Gallagher observed that Natalia was capable of understanding Peter's disclosures. Although Natalia was not working at the time she signed the PMA, Judge Gallagher noted that Natalia disclosed a net worth of $107,000 in her financial disclosures and admitted to owning a condominium in Siberia and stock from her former Russian employer, Gasprom, as well as a checking account. Peter disclosed net worth of $199,500, and testified his salary had increased about $4,000 annually by the time of the hearing. Judge Gallagher opined "the evidence presented does not reveal a significant disparity in the income of the parties and their respective assets at the time they entered into the agreement," noting Natalia's earning history was similar to Peter's. "Accordingly, based upon the record presented, [Natalia] failed to establish any significant inequality of bargaining power, or any surprise or oppression resulting therefrom."


David B. Saxe, J. In this divorce action the defendant husband seeks to sub*99stantially limit or remove certain discovery and trial issues by moving for (1) a protective order limiting disclosure of his net worth to a statement of his net worth through June 10, 1982 plus any sums received from subsequent sales of assets acquired prior to that date; and (2) for a ruling that all assets acquired by the defendant after June 10, 1982 constitute the defendant’s <mask>, or for a ruling that, if such assets are marital property, the plaintiff is equitably entitled to no portion of it.


If the clause be added “during her minority,” the mandatory provisions of the section are not followed, because said clause is a limitation—just as much as if this court undertook to set it aside for one year or two years. It must be conceded that this could not be done. Section 1474, Code of Civil Procedure, alone provides when the court may set a homestead aside for a limited period, to wit: when it is taken from the <mask> of the decedent: Phelan v. Smith, 100 Cal. 170, 34 Pac. 667.


There is nothing in the term “ allotted to each,” indicating an ultimate separation, and vesting the exclusive property in the chocolate in the parties severally; it was an allotment in contemplation of the mutual performance of the whole agreement. The agreement, if any, was entire. To carry it into effect, they must begin with some subject ; either by first bidding for and fixing the price of the machinery, or first weighing and dividing the chocolate. Whether they commenced with the one or the other, they must do both before the agreement was so far performed that either could insist upon a <mask> in the chocolate, unless the other consented that he should take it into his separate possession. There is not the slightest evidence of an express agreement to divide the chocolate only, and the acts done with a view to the performance. of the entire agreement do not show any such consent.


7. Stephanie R. Lauth agrees that any future increase in value of the <mask> now owned by or for the benefit of Thomas M. Heimann, as well as any appreciation in value thereof, and in particular those assets and expectancies disclosed and described in Exhibit A to this Agreement, and all dividends, interests, rents, issues and profits thereof, shall be and remain his sole and separate property, to use and dispose of as he sees fit as if no marriage had been entered into between the parties.


Family Code section 7605 states the basic presumption that, except as otherwise *911provided by statute, all property acquired by a married person during marriage, while domiciled in California, is community property. Each spouse has a "present, existing and equal" interest in the community property. (§ 751.) On the other hand, property acquired before marriage, or after separation, or at any time by gift, bequest, devise, or descent, is <mask>. (§§ 770, subd. (a), 771). And the "rents, issues, and profits" of separate property also are separate property, whether earned before, during, or after marriage. (§ 770, subd. (a)(3).) "Except as otherwise provided by statute, neither spouse has any interest in the separate property of the other." (§ 752.)


The only question in this case is, whether a promissory-note, made by her husband to her order and delivered by him to her, can be regarded as her separate estate, so as to authorize her to contract with reference to it—that is, to bind herself for the payment of it by indorsement, where she transfers it to a third person for a good and valuable consideration. The note, as the written obligation of the husband to pay a certain sum of money, for value received, by a certain day, would be personal property in the hands of the person to whom the note was made payable. If it had been received by the wife from a third person, it would belong to her as her separate estate, and being a promise to pay a sum of money for value acknowledged to have been received, she could presumptively maintain an *212action upon it against the maker. It has been held, that, so far as the wife has, by the enabling statutes, the capacity to act as a feme sole, she may contract with the husband, or the husband with her; and that, as respects her <mask>, or contracts or obligations growing out of any trade or business carried on by her, she may sue the husband, or the husband may sue her (Adams v. Curtis, 4 Lans. 167, and cases there cited; Minier v. Minier, Id. 421; Devin v. Devin, 17 How. Pr. 515; Gage v. Dawchy, 34 N. Y. 293; Abbey v. Deyo, 44 Id. 345 ; Moore v. Moore, 47 Id. 467). A wife may enter into a contract for the purchase of personal property from her husband, which, though void in law, is good in equity, if founded upon a sufficient consideration passing from the wife, and will in equity be enforced against the husband ; and the wife may loan money to her husband, for which she will have a claim against him which she can enforce in equity (Savage v. O'Neil, 44 N. Y. 302, and cases there cited). In this case of Savage v. O’Neil, the wife, during coverture, loaned money to her husband, which she had received from her mother, and took his notes for it. He afterwards executed a bill of sale to her of the goods in his store, in payment of the notes, and it was held that the bill of sale was good against creditors', and that the ■wife was the legal owner of the goods transferred by the bill of sale. In Jaycox v. Caldwell, 51 N. Y. 395, a husband, who was married before the act of 1848, and who had declined to assert his marital rights to the personal property of his wife, borrowed money from her, with the understanding that it would be repaid. It was held that the agreement was founded upon a sufficient consideration ; that it imposed an equitable obligation upon the husband, and that hisj>reierring that debt in an assignment for the benefit of creditors was lawful, and did not vitiate the assignment. Phelkirk v. Pluckwell (2 M. & S. 394) was an action at law upon a promissory note, made by the defendant to the order of a married woman. The action was brought by the husband and wife, and the objection was taken, that as it did not appear upon the face of the note that it was on account of any meritorious consideration moving to the wife, the husband alone ought to sue; but the court held that *213the wife was the meritorious cause of the action; that she was the donee of the note; that it was acquired, by her, and that the note was a thing that of itself imported a consideration. “ Does not a promissory note,” said Bayley, J., “ import prima facie a consideration for the promise to pay, according to the tenor—that is, to the wife—and what is there to show that the wife is not the meritorious cause of action ? It was incumbent upon the defendant to show the contrary.”


Most of the equitable distribution provisions of the Domestic Relations Law endeavor to regulate the economic consequences *442flowing from the dissolution of that relationship, but the moral and societal context in which that law is presented cannot be ignored. The underlying rationale of the reforms of 1980 was the assumption that marriage was purely an economic partnership and should be treated as such. Yet the statute, if read narrowly, would exclude all contributions made in furtherance of that economic union if such contribution preceded the marriage in question. Such an approach provides a bright line, distinguishing marital from <mask>, but ignores what often transpires in relationships that ultimately result in marriage, to wit, that the economic partnership frequently is up and running prior to the marriage. Where no marriage results, dissolution of such a partnership is effected through resort to equitable and legal principles not statutorily established. However where, as here, the partnership and the contributions to it would not exist but for the impending consummation of the intended marriage contract, then the provisions of the Domestic Relations Law should control even as to property acquired prior to the marriage. To hold otherwise would permit the Equitable Distribution Law to be utilized as a sword rather than the shield for which it was intended and would encourage the unscrupulous to prey upon weak-minded or emotionally fragile people to part with their property in return for a potemkin (i.e., phoney) marriage.


There is some dispute whether the contributions of a homemaker should be considered in the distribution of the increase in value of <mask>. (Cf. Jolis v Jolis, 111 Misc 2d 965, 979; Wood v Wood, 119 Misc 2d 1076, supra; see, also, New York State Assembly Memorandum in Support of Equitable Distribution Bill, reprinted in 11C Zett-Kaufman-Kraut, NY Civ Prac, Appendix B, p B-3.) The resolution of this issue appears to depend upon whether the property appreciated in value due to outside economic influences or whether the increased value was due to the labor, management, skill, or enterprise of the owner. In a recent decision, Justice O’Connor of the Second Department utilized an “active-passive” analysis. Because marriage is viewed as a partnership, the increase in value due to “active” management would often not have been possible without the indirect contributions of the other spouse: “The inexorable conclusion to be drawn from these definitions is that partnership theory prevails in the distribution of the fruits produced through the efforts of either spouse during marriage, since any efforts not directly related to such production are deemed to have enabled the other spouse to engage in efforts that were so related. Whether these fruits are derived from efforts utilizing separate property or marital property is fundamentally irrelevant.” (Conner v Conner, 97 AD2d 88, 99; emphasis added.) This “active-passive” distinction is discussed further in a footnote to this portion of the Conner decision (p 99): “4. Under this analysis, appreciation in passive investments such as bank accounts (as in the case at bar) or securities remains separate property, but appreciation of a *639business jointly managed by both spouses becomes marital property even though it is owned by one spouse who had managed it alone prior to their marriage. Without this active-passive management distinction, it would not be possible to characterize as marital property the appreciation of a business, owned and operated solely by one spouse before and during marriage, which happened to be the sole object of the owner-manager’s remunerative labors during marriage and the sole pecuniary support of their household (but see Jolis v Jolis, 111 Misc 2d 965, 979-980).


It seems evident from the above adjudications that a married"woman is invested, by the logical effect of our legislation, in regard to her separate estate and business, with all the attributes and powers of a feme sole, and so being, any contract made by her relative thereto is valid, including a copartnership agreement with her husband. An examination of the decisions in other States adverse to the above conclusion has not changed my opinion. (Lord v. Parker, 3 Allen, 127 ; Plumer v. Lord, 5 Allen, 460 ; 7 Allen, 481 ; Knowles v. Hull, 99 Mass. 562.) The principle adjudged by them is the entire want of power in a feme covert to contract with her husband. This is not in accord with the cases in the courts of this State already cited, and while justly entitled to great respect, those above should not, in such circumstance, be followed without question. In Chamboret v. Cagney (35 Superior Court R. 434) the eminent judge writing the opinion of the court admits it not necessary to definitely decide the question at bar in that case. In expressing his judgment, adverse to the conclusion here, he says: “ In case a wife has <mask>, although domestic circumstances may keep her home, or she may be kept there by the lawful exercise of a husband’s power over her in a proper contingency, he will not have power to dispose of that property. If they were business partners he might legally keep her home, and legally dispose of the partnership property at the place of business.” I have been led to differ from this reasoning, because the contingency suggested is equally likely to happen where her husband is general agent in the full control of her business, and also as to results when her personal estate is invested in a business wherein she is a partner with others. In re Kinkead (3 Bissell C. C. R. 405) is a decision confirming the views here expressed. In that case the firm, composed of husband and wife, was adjudicated bankrupt. An individual creditor of the husband, after proof of debt, claimed a dividend from the copartnership assets on the ground that *315the wife could not so contract with the husband, and the assets were therefore his in law, and subject to the payment of his debts equally with those of the firm. The creditor's application for a dividend was denied, and the decision of the District Court affirmed on appeal. In Scott v. Conway (58 N. Y. 619) a married woman who apparently carried on a separate business was held to the truth of that appearance, and in an action against her by one who dealt Avith her in ignorance of the partnership, she was precluded from interposing the defense of her husband being a dormant partner. The case is not fully reported, and Avhile the decision may not necessarily involve the point at bar, it is cited as possibly beneficial to those, if any, who may further consider this question and be able to examine the opinions of the court.


The difficulty with defendant’s position is that he presents no facts whatever from which the court may find that his defense is based upon more than mere surmise and is not a sham. All that defendant shows is that the plaintiff assignee is the wife of a member of the firm of attorneys which represents her in this action. Such status gives no rise to any presumption or inference that plaintiff is an agent or nominee of her husband. Section 50 of the Domestic Relations Law provides that the <mask> of a married woman is her sole property as though she were unmarried and it is not subject to her husband’s control. No citation is needed for the proposition that marriage does not, under the circumstances here, give rise to any presumed agency of the wife for the husband.


Thus, R.W. is not entitled to the $6,705.88 that the trial court awarded to him as <mask> for his "5.83% of the increase in value of the real property based on his separate property contribution of $23,028.13 to the down payment." On remand, the trial court shall ensure that R.W. is not awarded any portion of the appreciation as his separate property. We do not read R.W.'s brief as contending that he is entitled to this amount. Rather, R.W. contends that neither party is entitled to any portion of the appreciation of value of the marital residence as separate property, and that the entire $115,000 of appreciation is to be divided equally as community property. For the reasons stated in the text above, we agree with R.W.


Upon the question that the consideration was inadequate and that an unfair and undue advantage was taken of the plaintiff by the deceased, the burden of proof was, in the first instance, cast upon the defendant, if, as I have attempted to show, the transaction was void at law, and that' the plaintiff was called upon to make proof sufficient to sustain the release in a court of equity. But. conceding for the purposes of this appeal, that the burden of proof was, in the first instance, upon the plaintiff to show by affirmative evidence that the release was procured by fraud, and that the husband’s conduct was overreaching, unjust and unfair, then, when the plaintiff rested, a case was made for the consideration of the jury. One of the faults of the defendants’ argument as to the force and effect of the evidence upon the question of fraud is, that they treat this bargain between the husband and wife concerning her <mask>, the same as if the contract was between ordinary contractors, and utterly ignore the confidential relations existing between the parties to the agreement, which was disclosed on the face of the agreement. The relation existing between husband and wife is a circumstance which *160does of itself raise the presumption, of the exercise of undue influence by the husband, and that an unfair advantage was taken, and casts the burden of proof upon the defendant to show that the consideration paid was adequate and that no unfair advantage was taken of the plaintiff by her husband. In speaking of transactions between parties occupying confidential relations towards each other, the court, In the Matter of the Will of Smith (95 N. Y., 516), remarked: “ Dealings between parties thus situated, resulting in a benefit conferred upon, or an advantage gained by the one holding the dominating situation, naturally excites suspicion, and when the situation is shown, then there is cast upon the party claiming the benefit or advantage, the burden of relieving himself from the suspicion thus engendered, and of showing either by direct proof or by circumstances, that the transaction was free from fraud or undue influence, and that the other party acted without restraint and under no coercion or any pressure direct or indirect from the party benefited. This rule does not proceed upon a presumption of the invalidity of the particular transaction without proof. The proof is made, in the first instance, when the relation and the personal intervention of the party claiming the benefit is shown.” It is not necessary to cite any other of the many cases in this and other States sustaining this proposition, but the following are referred to because they are in point: Cowee v. Cornell (75 N. Y., 91); Carpenter v. Soule (88 id., 256; Sears v. Shafer (2 Seld., 268; Platt v. Platt (2 Sup. Ct. R. [T. & C.], 25; 2 Pomeroy’s Eq. Jur., § 951); Kline v. Kline (57 Pa., 120); Kline's Estate (61 id., 122); Fisher v. Bishop (N. Y. Ct. of App., 13 N. Y. St. Rep., 466).


There is another reason for compelling the court to take the action it is taking. In an equitable distribution divorce action, the law in New York is well settled that both parties are entitled to a searching exploration of each other’s assets and dealings at the time of and during the marriage, so as to delineate the extent of <mask> as distinguished from separate property, uncover hidden assets, discover possible waste of marital property, and, in general, gain any information which may bear on the issues of equitable distribution, spousal maintenance and child support. The entire financial history of the marriage must be open to inspection by both parties (Kaye v Kaye, 102 AD2d 682 [2d Dept 1984]; Lee v Lee, 93 AD2d 221 [2d Dept 1983]; Roussos v Roussos, 106 Misc 2d 583 [Sup Ct, Queens County 1980]; Aron v Aron, NYLJ, Sept. 3,1982, p 7, col 1 [Sup Ct, NY County, Stecher, J.]). In addition to the virtually unlimited disclosure now available in equitable distribution divorce actions, the cost of competent legal counsel is necessarily much greater (Ahern v Ahern, 94 AD2d 53 [2d Dept 1983]). The natural course of an equitable distribution divorce action may also entail the use of experts to evaluate the different kinds of marital assets (Domestic Relations Law § 237 [c]; Ahern v Ahern, supra; Gueli v Gueli, 106 Misc 2d 877 [Sup Ct, Nassau County 1981]; Fay v Fay, 108 Misc 2d 373 [Sup Ct, Suffolk County 1981]). The court may restrain a party from transferring or disposing items of marital property (Domestic Relations Law § 234; Leibowits v Leibowits, 93 AD2d 535 [2d Dept 1983]). Any attorney who has been called upon to properly answer a set of interrogatories propounded on his client or to prepare a statement of net worth in the form prescribed by the Rules of the Chief Administrator of the Courts (22 NYCRR 117.2) will attest to the fact that divorce actions are more costly and time consuming than ever before.


The defendant husband contends, among other things, that the court erred in failing to give him credit, as separate property, for $5,000 used in 1973 and $2,000 used in 1974 to purchase real property, as well as $11,000 from the sale of a lease and option to purchase a portion of certain of his real property located in Brooklyn, New York. The defendant further argues that $25,000 he received when he mortgaged the Brooklyn property should also be treated as separate property. We disagree. The term "marital property” should be construed broadly, while the term "separate property” as an exception to <mask> is to be construed narrowly (see, Price v Price, 69 NY2d 8, 15). A court is not bound by a party’s own account of his or her finances, and where a party fails to trace the sources of money claimed to be separate property, the court is justified in treating it as marital property (see, Sarafian v Sarafian, 140 AD2d 801, 804). With regard to the sums of $5,000, $2,000, and $11,000, respectively, the defendant relies solely on his own account of the origin of this money. With regard to the $25,000 he received when he mortgaged the Brooklyn property, the plaintiff cosigned the note and was obligated for its repayment. Although the defendant claims that the mortgage note was repaid with his separate funds, he again offers no evidentiary support for this assertion beyond his own testimony. Thus, the court properly declined to credit the defendant with the above amounts as separate property.


*777Clearly, Mr. Moll is an exceptional wage earner. His net worth statement indicates that his income in 1999 was $392,000. Plaintiff has also submitted proof sufficient to raise a triable issue of fact that defendant’s career as a stockbroker and financial advisor carries with it significant goodwill in the form of his “book of business” which can be valued. (Cf. Bystricky v Bystricky, 177 Misc 2d 914 [Sup Ct, Nassau County 1998].) It is noteworthy that the value attributed to defendant’s “book of business” by plaintiff is based upon defendant’s previous 12 months of commissions and does not represent post-marital earnings. In the only reported decision found by this court, a similar “signing bonus” was found to be a marital asset subject to equitable distribution. (See, Reiss v Reiss, 654 So 2d 268 [Fla 1st Dist 1995].) This intangible career advantage possessed by and inseparable from the defendant is a valuable asset. To the extent that the plaintiff has made direct or indirect contributions during the marriage to the enhancement of defendant’s career resulting in its goodwill, under the economic partnership theory of a marriage, she should share in the fruits of their joint labor. (See, Kelly, Sharing a Piece of the Future Post-Divorce: Toward a More Equitable Distribution of Professional Goodwill, 51 Rutgers L Rev 569, 602-603 [1999].) It would be inequitable and contrary to the expansive definition of <mask> as construed by the Court of Appeals to not consider defendant’s “book of business” or personal goodwill as marital property.


Defendant judgment debtor and plaintiff judgment creditor are former husband and wife. This action was brought pursuant to CPLR article 54 to enforce the provisions of a New Jefsey judgment of divorce entered March 25, 1982 requiring judgment debtor (former husband) to pay judgment cifeditor alimony, child support, health insurance, life insurance premiums, attorneys’ fees and costs, accountants’ fees and equitable distribution of the <mask>. On July 2, 1982, a supplementary order was entered in the New Jersey court requiring defendant judgment debtor toiulfill his obligations under each paragraph of the judgn4ÉlSf Store* as they had accrued up to that date, *730and which also provided that in the event that defendant did not fulfill those obligations within 15 days from the date of the order, plaintiff could apply on an ex parte basis for the issuance of a bench warrant for the arrest of defendant. Defendant did not comply with the order, however, plaintiff’s counsel avers it would have been useless to seek the bench warrant for defendant’s arrest as defendant was not physically in the State of New Jersey. Nor was it possible to enforce any part of the judgment in New Jersey as there were no known assets of defendant within that State.


Further, the agreement included the following provision: "It is the express intention of the parties to opt out of, and to waive, the community property system, the <mask> system, the matrimonial property system and out of any other system that provides for the acquisition of interest in property or the distribution of property, or both, by virtue of marriage. The only way in which community property can be created during the marriage is by a valid written transmutation signed by both parties changing separately owned property into community property or the acquisition of an asset with income and earnings of a party that are community property after the modification of this Agreement pursuant to paragraph 5.15."


The ETP funds are similar to the RPU stocks in Dotson to the extent that both were provided as incentives to reward the employee's long-term commitment to the employer. In the case of an employee benefit, the operative factor in determining whether benefits are marital or non-<mask> is not whether vesting has occurred. McGinnis v. McGinnis , 920 S.W.2d 68, 70 (Ky. App. 1995). Rather, the test is whether the spouse's right to participate in the plan was earned during the marriage. Id. If the benefits are a mere expectancy, then the asset is non-marital; but, if the employee's right to future participation in the plan accrued during the marriage, then it is a marital asset even though the employee's right to receive those benefits does not arise until after the marriage. Id. at 71.


However, the court finds that under section 236 (part B, subd 5, par e) of the Domestic Relations Law it would be *982impractical and burdensome to compel the husband to distribute a portion of this fund as a cash distribution at this time. To compel an award now would unjustly and adversely affect the entire DDI plan and the other directors’ interest, possibly destroying the unique nature and purpose for which it was established. Furthermore, it seems unnecessary, in view of the extent of the <mask> available for distribution, to force all or part of its liquidation now, especially because of the growth potential of this type of joint investment plan. Rather, this court determines that a deferred distribution of these funds as hereinafter provided is appropriate.


¶116 Consistent with our discussion in this opinion, we remand to the district court to adjust the <mask> valuation, to make findings regarding Candi’s tax liability and adjust the alimony award, to clarify whether Guy is must obtain security on Candi’s alimony award, and to enter orders necessary to adequately secure Candi’s interest in her unpaid share of the marital estate.


After consideration of the credible evidence offered by the plaintiff, and in light of the admissions made by the defendant, this court finds that the plaintiff has met her burden, and has established the elements of civil contempt by clear and convincing evidence. (See Manning v Manning, 82 AD3d 1057 [2d Dept 2011]; see also Soehngen v Soehngen, 58 AD3d 829 [2d Dept 2009].) Accordingly, the court hereby finds the defendant to be in contempt of the automatic orders that were served at the commencement of the underlying divorce action. Moreover, the defendant’s sale of <mask> and the expenditure of the proceeds of sale was clearly calculated to, and/or actually did, defeat, impair, impede, or prejudice the rights of the plaintiff. (See Stempler v Stempler, 200 AD2d 733 [2d Dept 1994].) Plaintiff’s motion to hold defendant in civil contempt is hereby granted.


Regarding the division of <mask>, the trial court determined that the mortgage on the Residence was $87,700, when the parties married; at trial, the mortgage balance was $26,833.50. Thus, the equity accrued on the Residence during the marriage was $60,866.50. The trial court found that the parties issued mortgage payments from Husband's Bank of America checking account, where Husband regularly deposited both his salary and his military pension. The trial court found that Husband commingled the deposits in his Bank of America checking account. Therefore, the trial court found a marital interest in the equity accrued via the mortgage payments made on the Residence. The trial court divided the $60,866.50 in accrued equity equally, ordering Husband to pay Wife $30,433.25. Additionally, the trial court determined that Husband provided no direct evidence that he used only separate funds to pay for any renovations to the Residence.


Howard Berler, J. The trial of this action took place on January 27, 28 and 29, 1998. After an inquest on the first day thereof, plaintiff was awarded a divorce on the ground of constructive abandonment. On January 28, 1998, the parties entered into a stipulation regarding all custody and visitation issues. Left for the court to resolve were issues of financial support and distribution of <mask>.


Sometime thereafter Paula retained new counsel. With the assistance of her new counsel, on June 2, 2016, Paula filed a CR 59.05 motion to alter, amend, or vacate. In that motion, Paula argued that John had not resided in Kentucky for the 180 days preceding his filing the petition for divorce as required by KRS 9 403.140, meaning *362that the trial court lacked subject matter jurisdiction. In support of her claim, Paula contended that John maintains a Colorado driver's license, files Colorado tax returns, and receives mail in Colorado. Paula maintained her argument that John had failed to timely and completely provide her with all financial documents and-for the first time-alleged that John had stated during mediation that the Southgate Plaza had recently been appraised and received a new value. Paula claimed that this statement was a fraudulent material misrepresentation, which should render the Agreement unenforceable. Additionally, Paula contended that the Agreement was insufficient to comply with the requirements of KRS 403.180(4)(a) because it was not, on its face, a "separation agreement" and only separation agreements could be incorporated by reference as a continuing order in a decree of dissolution. Finally, Paula argued that the trial court had erred in considering her non-<mask> when determining whether the Agreement was unconscionable.


In 1980, the Legislature abolished a law that had automatically barred a woman from receiving alimony if she was guilty of misconduct constituting marital fault. In its place, the Legislature enacted the Equitable Distribution Law (EDL) (Domestic Relations Law § 236 [B], L 1980, ch 281, § 9), a statute that contains no reference to marital fault in its list of factors for the court to consider in equitably distributing <mask> upon divorce.


“It is well established that a spouse’s pension constitutes <mask> only to the extent that the corpus of the fund accumulates during the marriage and prior to the commencement of the divorce action (see, Domestic Relations Law § 236 [B] [1] [c]; Majauskas v Majauskas, 61 NY2d 481. . .).” (Cohn v Cohn, 155 AD2d 412, 413 [2d Dept 1989].) Contrary to defendant’s argument, however, he had the burden to establish value. (Grenier v Grenier, 210 AD2d 557, 558 [3d Dept 1994] [“The burden of proving a pension’s value is on the party seeking an equitable share of the pension” which “is typically established by actuarial evidence”]; Michalek v Michalek, 114 AD2d 655, 657 [3d Dept 1985] [“plaintiff has the burden, as the one seeking a portion of the pension interest, of establishing the value of said interest, usually by actuarial evidence, as well as evidence of the plan itself, establishing the pensioner’s rights”].) In Biagiotti v Biagiotti (97 AD3d 941 [3d Dept 2012]), the Court upheld the trial court’s refusal to distribute any portion of an IRA on a similar failure of proof.


(a) At the time a divorce decree is entered: (1)(A) All <mask> shall be distributed one-half (½) to each party unless the court finds such a division to be inequitable. In that event the court shall make some other division that the court deems equitable taking into consideration: (i) The length of the marriage; (ii) Age, health, and station in life of the parties; (iii) Occupation of the parties; (iv) Amount and sources of income; (v) Vocational skills; (vi) Employability; (vii) Estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income; (viii) Contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; and (ix) The federal income tax consequences of the court's division of property. Specifically, Sandra argues that the court should have considered the length of the marriage, the age and health of the parties, and in particular, the contribution of each party in the marital home. In her view, that William keeps his inheritance, which is the Barling property, and also receives half of her inheritance, is unfair.


Nor is there rational justification in holding certain careers to be <mask> and others not. Why is the "celebrity status” career of a model/actress (Golub v Golub, 139 Misc 2d 440, supra) or the career of an entertainer (Getz v Getz, Westchester County, Feb. 1989, index No. 13940/81, Colabella, *859J.) any more a marital asset than, for example, the career of a Judge, secretary, hairdresser, construction worker or chef? Webster defines career as “a chosen pursuit, the general course and progression of life”. Certainly neither the Legislature nor the Court of Appeals intended to provide relief in unequal measure to noncareered spouses.


We review a trial court's division of <mask> for an abuse of discretion. See Barras v. Barras , 396 S.W.3d 154, 164 (Tex. App.-Houston [14th Dist.] 2013, pet. denied). The trial court has broad discretion when dividing the marital estate at divorce, and we must indulge every reasonable presumption in favor of the trial court's proper exercise of its discretion. Murff v. Murff , 615 S.W.2d 696, 698 (Tex. 1981). "To disturb a trial court's division of property, a party must show that the court clearly abused its discretion by a division or an order that is manifestly unjust or unfair." Barras , 396 S.W.3d at 164. A trial court abuses its discretion when it acts arbitrarily, unreasonably, or without any reference to guiding rules and principles. Worford v. Stamper , 801 S.W.2d 108, 109 (Tex. 1990).


As for the Arizona undeveloped realty valued at $70,000, the court finds that this property, although acquired during marriage and prior to July 14, 1980, was purchased in the sole name of Mona Giurescu. This property, too, was neither acquired in the name of either or both of the spouses, nor did the proof show it was intended by the husband to be his property notwithstanding his furnishing the cost thereof. Accordingly, this realty is also excludable from <mask> as a gift to a third party.


The court finds that the retained earnings attributable to the husband’s DDI stock interest constitute separate property. The fair preponderance of the evidence showed that the husband’s DDI stockholdings evolved from his father’s premarital and marital gifts to him through a chain of intricate transactions involving stock exchanges, corporate mergers, note and loan transfers and stock reorganizations over the years. The court rejects the argument of the wife that the retained earnings upon which the DDI stock value is based constitute distributable <mask>. The unique nature and structure of this closely held family corporation requires extensive bank credit, the business being totally dependent upon it. The retained earnings are not in the nature of readily available independent personal assets of the husband but rather are incremental increases in the value of DDI stock, as DDI historically has never paid a dividend or distributed after tax profits. Moreover, in the event the husband withdrew from DDI under the DDI stockholder agreement his stock is required to be sold back to other shareholders to maintain family control. Significantly, the Internal Revenue Service has never objected, in audits, to DDI accumulating these after-tax profits as corporate retained earnings. Although upon dissolution of DDI or at his death, the hus*979band or his estate would be entitled to the book value commensurate with his stock interest, the crux of such interest is based on his stock shares, derived solely as gifts from his parents. Therefore, his DDI stock and his proportionate share of retained earnings are separate property and, as such, exempt from distribution.


Where equitable distribution of <mask> is appropriate but "the distribution of an interest in a business, corporation or profession would be contrary to law,” the court is required to make a distributive award in lieu of an actual distribution of the property (see, Domestic Relations Law § 236 [B] [5] [e]). Clearly, those words indicate that an interest in a profession or professional career potential is marital property which may be represented by direct or indirect contributions of the non-title-holding spouse, including financial contribution and nonfinancial contributions made by caring for the home and family (see, O’Brien v O’Brien, supra).


The remaining issues are equitable distribution of the marital assets, child support, maintenance and counsel fees. The court will address the question of equitable distribution first. It is a three-part process; initially the court will categorize the parties’ assets as either <mask> or separate property (Domestic Relations Law § 23 [B] [1] [c], [d]). This is followed by the next step of evaluation. Once the process is completed, the question of the actual distribution of the assets can be accomplished.


“Since section 234 was intended only as a procedural device to permit a court in a marital action to determine questions of possession and title arising within that action, and was not intended to alter existing substantive property law principles, we hold that unless a court alters the legal relationship of husband and wife by granting a divorce, an annulment, a separation or by declaring a void marriage a nullity, it has no authority to order the sale of a marital home owned by the parties as tenants by the entirety.” (Kahn, supra at 210 [emphasis added].) Plaintiff suggests that Kahn actually supports his position because the subject property in this case is not owned by the parties as tenants by the entirety, but rather as joint tenants *551with rights of survivorship. However, this court finds such distinction of no consequence, since the subject property in Kahn just happened to be real property (i.e., the marital residence), owned by the parties as tenants by the entirety by operation of law. This court submits that given the discussion of the intended purpose of Domestic Relations Law § 234 by the Kahn court as quoted above, the result in that case would have been the same even if the property at issue in that case had been personal property held by the parties as joint tenants with rights of survivorship, as such a tenancy is certainly akin to a husband and wife owning real property as tenants by the entirety. In any event, Kahn clearly supports a finding that Domestic Relations Law § 234 is not applicable in this post-Equitable Distribution Law, nonmarital action which seeks to not only declare title and possession to the subject property, but seeks to distribute and/or liquidate <mask> titled jointly to the parties.


But nor can the court accept the contention that the broader “fair and reasonable when made and not unconscionable at final judgment” statutory test for maintenance agreements applies equally to <mask> agreements. Although the Practice Commentary suggests (id., C236B:5) that this language was inserted into the maintenance subdivision only due to a clerical error, it is not the proper role of this court to rewrite the statute. (See McKinney’s Cons Laws of NY, Book 1, Statutes, § 73.) If in fact an error was made, it is for the Legislature, not the court, to correct. (Ibid.; see Meltzer v Koenigsberg, 302 NY 523, 525; Matter of State of New York v Strong Oil Co., 105 Misc 2d 803, 809, affd 87 AD2d 374.)


“The value of a newly earned license may be measured by simply comparing the average lifetime income of a college graduate and the average lifetime earnings of a person holding such a license and reducing the difference to its present value (see, O’Brien v O’Brien, supra, at 582; 2 McCahey, Valuation & Distribution of <mask> § 30.03 [3], at 30-19 — 30-21). In contrast, where the licensee has already embarked on his or her career and has acquired a history of actual earnings, the *127foregoing theoretical valuation method must be discarded in favor of a more pragmatic and individualized analysis based on the particular licensee’s remaining professional earning potential (see, Finocchio v Finocchio, supra, at 1045-1046; Schei-nkman, op. cit., C236B:6, at 48 [1995 Cum Ann Pocket Part]).” (87 NY2d at 286.) The plaintiff argues that since the defendant has never used his license as a professional engineer in the course of his employment, he has never “embarked upon” such a career within the meaning of the second category defined in McSparron, and therefore his license should be valued on the basis of his potential earnings as a professional engineer, as if the license were “newly earned.”


“to ‘be meticulous in guarding against duplication in the form of maintenance awards that are premised on earnings derived from professional licenses’ (id.). To allow such duplication would, in effect, result in inequitable, rather than equitable, distribution. In contrast to passive income-producing <mask> having a market value, *220the . value of a professional license as an asset of the marital partnership is a form of human capital dependant upon the future labor of the licensee. The asset is totally indistinguishable and has no existence separate from the projected professional earnings from which it is derived. To the extent, then, that those same projected earnings used to value the license also form the basis of an award of maintenance, the licensed spouse is being twice charged with distribution of the same marital asset value, or with sharing the same income with the nonlicensed spouse.” (Grunfeld v Grunfeld, supra at 704-705.) So also, this court is well aware that the principal source of income for plaintiff is the fees from the personal injury cases.


It appears that the parties were divorced by judgment of this court dated March 2, 1982 (McInerney, J.), which judgment directed that all other issues, including equitable distribution of the parties’ <mask>, be referred for a subsequent trial. Defendant in this four-year marriage is seeking an order directing that his medical practice is separate property and that any increase in the value of the claimed separate property subsequent to the date of his marriage to plaintiff herein is also separate property, and, as such, is not property subject to equitable distribution. Defendant claims that plaintiff never worked at defendant’s medical office and has done nothing to increase the value of his professional practice.


Specifically, the husband attacks clause (10) both in section 236 (part B, subd 5, par d) and section 236 (part B, subd 6, par a) of the Domestic Relations Law, which has been characterized in various decisions as the “catch-all” or “wildcard” factor. Both subdivisions 5 and 6 of part B of section 236 enumerate 10 factors which the court is required to consider in making awards for equitable distribution of <mask> and for maintenance of the wife. In each case nine specific areas of consideration are enumerated; in each case the tenth factor states as follows: “(10) any other factor which the court shall expressly find to be just and proper”.


A trial court has broad discretion when fashioning an award of equitable distribution. Dalrymple v. Kilishek, 920 A.2d 1275, 1280 (Pa. Super. 2007). Our standard of review when assessing the propriety of an order effectuating the equitable distribution of <mask> is “whether the trial court abused its discretion by a misapplication of the law or failure to follow proper legal procedure.” Smith v. Smith, 904 A.2d 15, 19 (Pa. Super. 2006) (citation omitted). We do not lightly find an abuse of discretion, which requires a showing of clear and convincing evidence. Id. This Court will not find an “abuse of discretion” unless the law has been “overridden or misapplied or the judgment exercised” was “manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence in the certified record.” Wang v. Feng, 888 A.2d 882, 887 (Pa. Super. 2005). In determining the propriety of an equitable distribution award, courts must consider the distribution scheme as a whole. Id. “[W]e measure the circumstances of the case against the objective of effectuating economic justice between the parties and achieving a just determination of their property rights.” Schenk v. Schenk, 880 A.2d 633, 639 (Pa. Super. 2005) (citation omitted).


■The rationale of the authorities cited by defendant is that a person may not plead or prove his cause on the proscribed provision, nor seek the aid of the court in furthering or establishing and benefiting from his illegal purpose. For the purposes of this motion, the court will consider the separation agreement as one that was solicited to attain wife’s- goal of settling her .separation action, obtaining support for her children, an equitable division of <mask> and a right to live separate and apart from husband without fear of molestation or interference. Wife and children would not hesitate to enforce the beneficial provisions of the agreement enuring to them. It is indeed an anomalous situation where an over-all agreement, not malum in se, may be declared valid by the court in all respects other than the provision of nonsupport and then declare the agreement not to be a separation agreement for use as a “ formal document ’ ’ upon which a divorce action may be predicated. In effect the court would be assessing a double penalty against husband for being a party to an agreement exacted by wife. To dismiss plaintiff’s complaint is to broadly declare as a matter of law that wife, and wife alone, may benefit from a separation agreement containing one void provision. The husband may only be the victim, barred from enforcing the unrelated rights that can accord with statute to terminate a dead marriage.


The division of <mask> is inexorably connected with the issue of entitlement to maintenance by reason of § 452.335.1(1) which requires a finding that the spouse seeking maintenance lacks sufficient property, including marital property apportioned to that party, to meet his or her reasonable needs before an award of maintenance may be ordered. Willbanks v. Willbanks , 251 S.W.3d 359, 361 (Mo. App. S.D. 2008).


The Court of Appeals expanded on the concept of pension rights as <mask> for equitable distribution in Olivo v Olivo (82 NY2d 202 [1993]). In Olivo, the Court of Appeals explained that its decision in Majauskas (supra) was “premised on the idea that a pension is a form of deferred compensation”. (82 NY2d, supra, at 207.) In so doing, disability payments *930which were calculated upon years of employment were found to be subject to equitable distribution. The Olivo Court determined that an early retirement incentive which was offered by the employer after commencement of a matrimonial action, and in fact, after the judgment of divorce, did not constitute a form of deferred compensation or money which was realized during the time of marriage and declined to equitably distribute same.


¶63 First, we agree with Guy that Utah law does not support Candi’s contention that the court was required to evaluate WBC as a going concern. In fact, our case law is clear that courts have broad discretion in determining the proper method for calculating the value of <mask>. See DeAvila v. DeAvila, 2017 UT App 146, ¶ 12, 402 P.3d 184 (“District courts generally


As a general matter, any bonus that accrues during the marriage is <mask> subject to division. Wilson v. Wilson , 294 Ark. 194, 741 S.W.2d 640 (1987). However, the circuit court did not specifically rule on the issue of Kerry's 2016 bonus. Our caselaw is clear that Phyllis had the burden of obtaining a ruling on this issue to preserve it for appeal. Sloop v. Kiker , 2016 Ark. App. 125, 484 S.W.3d 696. In the absence of a ruling, our court will not reach an issue, nor will we presume a ruling from the circuit court's silence. Id. For this reason, we affirm on this point without reaching the merits of Phyllis's argument.


*527Furthermore, the new evidence indicates that Gary and his father opened the CDs at issue during the marriage, and nothing conclusively establishes that the CDs were property acquired by gift or by reason of the death of another as contemplated under Arkansas Code Annotated section 9-12-315(b). Because the CDs were opened and renewed during the marriage, we cannot say the circuit court clearly erred in finding that they were <mask>.


A textual analysis of Domestic Relations Law § 236 does not supply a ready answer to the issue of whether the ashes of a stillborn fetus conceived and miscarried during the marriage constitutes marital or separate property. Domestic Relations Law § 236 (B) (1) (c) and (d), in relevant part, defines <mask> as “all property [that is not otherwise defined as separate] acquired by either or both spouses during the marriage . . . , regardless of the form in which title is held.” Separate property, as far as it could be relevant to this matter, is defined as “property acquired before marriage” (id. § 236 [B] [1] [d] [1]).


Keith argues this was made in error because "there was no factual basis for the award of the alleged reduction of debt on a non-<mask> paid for with alleged marital funds." We disagree. Here, the record demonstrates that Keith refinanced the Sherwood House in 2007 for $73,466 and, according to Keith's testimony, at the time of the hearing it was under contract to sell for $103,000. Keith further testified that after fees and commission they would receive roughly $89,000 from the sale and that about $59,000 is still owed on the note. Keith put on no evidence to demonstrate that the reduction in debt was not attributable to marital funds. Considering that a circuit court is given broad powers to distribute both nonmarital and marital property to achieve an equitable division, Smith v. Smith , 32 Ark. App. 175, 184, 798 S.W.2d 442, 447 (1990), and that a non-owning spouse is entitled to some benefit when marital funds have been used to pay off debts or make improvements on the owning spouse's nonmarital property, Box v. Box , 312 Ark. 550, 555, 557, 851 S.W.2d 437, 440, 441 (1993), we are not left with a definite and firm conviction that a mistake has been committed.


*303The trial court awarded Wife a small checking account and a few items of marital and nonmarital household and personal goods of nominal value. Husband was awarded the remainder of the <mask>, excluding the property and assets of the three businesses. Although the trial court found it was unable to assign a value to the three businesses, it found Husband had represented to financial institutions he had a net worth in excess of $7 million. The trial court further found the businesses were Husband's "alter ego" used to shield his income from creditors, and the "corporate veil should be pierced in order that equity be done in this case." The trial court "tabled" division of the property and assets of the three businesses until the "bankruptcy stay is lifted."


The statute, as indicated above, provides that <mask> shall be divided equitably between the parties but where “the court shall determine that an equitable distri*598button is appropriate but would be impracticable or burdensome or * * * contrary to the law, the court in lieu of such equitable distribution shall make a distributive award in order to achieve equity between the parties” (Domestic Relations Law, § 236, part B, subd 5, par e; emphasis supplied).


¶79 “When the district court assigns a value to an item of <mask>, the court must equitably distribute it with a view toward allowing each party to go forward with his or her separate life.” Marroquin v. Marroquin, 2019 UT App 38, ¶ 27, 440 P.3d 757 (quotation simplified). In situations where the marital estate consists primarily of a single large asset, such as a business or stock, a common acceptable approach for the court to take is to award the asset to one party and make a cash award to the other party. See Taft v. Taft, 2016 UT App 135, ¶ 56, 379 P.3d 890; Argyle v. Argyle, 688 P.2d 468, 471 (Utah 1984). This avoids the necessity for the parties “to be in a close economic relationship which has every potential for further contention, friction, and litigation.” Argyle, 688 P.2d at 471 (quotation simplified).


The current landscape in divorce matters, as dictated by the 37-year-old, pre-equitable distribution, pre-no-fault divorce, pretemporary maintenance guidelines holding in Kahn v Kahn, does not accommodate this real-world difficulty. Other courts have suggested some movement away from the strict rule in Kahn. In Stratton v Stratton (39 Misc 3d 1230[A], 2013 NY Slip Op 50808[U] [Sup Ct, Sullivan County 2013]), when the husband refused to pay the mortgage, the court ordered interim sale of a marital residence under the theory that the sale was required to preserve the asset. The court noted that under the equitable distribution law the “courts have recognized the judicial flexibility and discretion needed to issue orders necessary to preserve marital assets in danger of being dissipated during the pendency of the divorce proceeding.”3 (2013 NY Slip Op 50808[U], *4; see also Lidsky v Lidsky, 134 Misc 2d 511 [Sup Ct, Westchester County 1986] [ordering the refinancing of <mask> to preserve family assets];4 St. Angelo v St. Angelo, 130 Misc 2d 583 [Sup Ct, Suffolk County 1985] [house in danger *1008of foreclosure could be sold over objection of one spouse pendente lite]; but see Shammah v Shammah, 22 Misc 3d 822 [Sup Ct, Nassau County 2008] [declining to order sale of property pendente lite].)


*873“one date frequently mentioned as a date to be utilized for valuation is that of the date of the commencement of the matrimonial action. The valuation date would, in most cases, then coincide both with the date at which <mask> is identified and with the date at which a pension is valued. However, the rule could lead to injustice if the asset has significantly increased or decreased in value between the date of commencement and the date of trial of the action. If an asset increases in value due to market forces or inflation, valuation as of the date of commencement of the action would result in a windfall to the titled spouse and injustice to the other. If the asset greatly decreased in value, as would be the case, for example, if a closely held corporation lost a major customer, a court which values assets at the date of commencement of the action might make a distributive award that is beyond the owner spouse’s ability to pay. A rule requiring valuation at the time of trial could be equally unworkable. In some cases, practical problems could arise if proof of value at the date of trial is unavailable. Injustice could result if the value of an asset significantly decreased after commencement of the action due to wasteful dissipation or other fault of the owner spouse. In this type of circumstance, it might be unfair to, in effect, force the blameless spouse to share a portion of the loss. An asset such as, for example, a business, might suddenly appreciate in value due solely to the efforts of the owner spouse. If a considerable period of time has elapsed since the date of commencement or the date of separation, the court might be justified in establishing a valuation date earlier than the date of trial. A ‘fixed valuation date can never obviate all ills, depending upon what side of the fence one may position himself.’ ” (123 AD2d at 234, supra [citations omitted].) Recognizing the difficulty involved in attempting to establish a fixed date for valuing assets, the Wegman court “concluded that there can be no strict rule mandating the use of a particular valuation date and that a trial court must have the discretion to select a date appropriate to the case before it in light of the particular circumstances presented” (ibid.).


Additionally, we have held that a nonowning spouse is entitled to some benefit when marital funds have been expended to reduce the debt on the other spouse's non<mask>. Wilson v. Wilson , 2016 Ark. App. 256, 492 S.W.3d 534. However, that reduction in debt on nonmarital property is not considered to be marital property to be divided equally; instead, the nonowning spouse is simply entitled to have the marital contribution considered in balancing the equities involved in the property division. Id.


The parties are possessed of <mask> which includes, inter alla, the marital home, which has concededly increased in value during the marriage, and property in Maine, which has not. The prior order of this court awarded the parties an equal share in both properties, and found that defendant had contributed $26,625 in separate property to the purchase of the marital home and $13,000 in separate property to the purchase of the Maine property.


Because this marriage was of long duration, i.e., 18 years, plaintiff’s proof, at best, establishes an acrimonious, unhappy and incompatible relationship, and is insufficient to meet the degree of proof required in a long-term marriage to establish cruel and inhuman treatment (see, Brady v Brady, 64 NY2d 339, 345; Hessen v Hessen, 33 NY2d 406, 411-412; Walczak v Walczak, 206 AD2d 900; Marciano v Marciano, 161 AD2d 1163, 1164, lv denied 76 NY2d 707; Green v Green, supra). Consequently, the divorce was improperly granted, and the <mask> was not subject to equitable distribution (see, Domestic Relations Law § 236 [B] [5] [a]; Marciano v Marciano, supra). Defendant requests an award of maintenance even in the event that we reverse the judgment of divorce. Because the respective circumstances of the parties may have changed in the two years since the divorce was granted, we remit the matter to Supreme Court to determine that request (see, Domestic Relations Law § 236 [B] [6]). In making that determination, the court must take into consideration the marital standard of living and defendant’s ability to be self-supporting (see, Hartog v Hartog, 85 NY2d 36; Pilato v Pilato, 206 AD2d 928; Burns v Burns, 193 AD2d 1104, 1105, mod on other grounds 84 NY2d 369). (Appeal from Judgment of Supreme Court, Erie County, Glownia, J.—Divorce.) Present—Fallon, J. P., Wesley, Doerr, Balio and Boehm, JJ.


. Fault was neither included nor excluded from the original 10 factors a court was required to consider in dividing <mask>, although some argued that the catchall tenth factor, “any other factor which the court shall expressly find to be just and proper,” encompassed fault (Domestic Relations Law § 236 [B] [5] [d] [former (10)]). The Court of Appeals ended this uncertainty with its decision in O’Brien v O’Brien (66 NY2d 576 [1985]), that fault could only be considered, and only as one of many factors, if it was egregious (id. at 589-590, citing Blickstein v Blickstein, 99 AD2d 287, 292 [2d Dept 1984], appeal dismissed 62 NY2d 802 [1984]).


In deference to this standard, courts have held that conduct consisting primarily of “verbal harassment, threats and * * * acts of minor domestic violence, is * * * not so outrageous or extreme as to shock the conscience of the court and to justify [a party’s] divestiture of * * * <mask>.” (Kellerman v Kellerman, 187 AD2d 906, 907-908 [3d Dept 1992].) It has further been held that the combination of a wife’s open adultery, physical abuse (including scratching, biting and hair pulling), verbal abuse, and wounding of her husband with a knife while breaking into his locked briefcase, does not constitute egregious fault.


“[A] trial court must start with a presumption that all property held by either party whether held jointly or individually is to be considered <mask>.” Ulsaker v. White, 2006 ND 133, ¶ 13, 717 N.W.2d 567. “The trial court must then determine the total value of the marital estate in order to make an equitable division of property.” Id. “After a fair evaluation of the property is made, the entire marital estate must then be equitably divided between the parties under the Ruff-Fischer guidelines.” Id.


The Court of Appeals has clearly held that one spouse’s contributions to the other spouse’s profession or career represent an investment in the economic partnership of the marriage and the product of the parties’ joint efforts, the professional license, should be considered <mask> subject to equitable distribution. The professional license is a valuable property right measured by the enhanced earning capacity it affords its holder. (O’Brien v O’Brien, 66 NY2d 576, 586.) Contributions to this economic partnership by the spouse not obtaining a license can include investment of substantial assets or income as wage earner, sacrifice of his or her own educational or career goals, performance of the bulk of household and child-rearing duties and responsibilities, and the deferment of the acquisition of marital assets other than the license which could have been acquired by the parties if the licensed spouse had been employed rather than occupied with the study and training necessary to acquire the license. (O’Brien v O’Brien, supra, at 585.)


Courts throughout the United States have generally treated the continued enforceability of a <mask> division agreement as a question of the parties’ intent, where the death of a party occurs prior to divorce (Annotation, Separation Agreements: Enforceability of Provision Affecting Property Rights Upon Death of One Party Prior to Final Judgment of Divorce, 67 ALR4th 237, § 2; Bruce v Dyer, 309 Md 421, 524 A2d 777 [1987]). In at least one case, the fact that a party was in ill health and had a limited life expectancy at the time of an agreement was considered in the court’s determination that the couple intended the agreement to be effective regardless of death prior to obtaining a divorce (In re Garrity’s Estate, 22 Wash 2d 391, 156 P2d 217). Partial performance during a party’s life may also be looked at when considering enforcement of an agreement after death (Pavluvcik v Sullivan, 22 Mass App 581, 495 NE2d 869). In Darling v Darling (supra), the Appellate Division held that an agreement between spouses was enforceable despite the death of the wife prior to divorce and despite an oral agreement that transfers made under the agreement should not become effective until the wife obtained and entered a final decree of divorce. The Court in Darling held that the alleged oral pact was illegal and void. Matter of Violi (65 NY2d 392) held that a separation agreement did not transform a tenancy by the entireties unto a tenancy in common (Kahn v Kahn, 43 NY2d 203; see, General Obligations Law § 3-309). However, that Court did not consider whether the decedent’s property interest, which was extinguished by his death, affects his right to enforce the decedent’s separate and distinct contract rights. In Brower v Brower (supra at 94), the Court, in reaching that issue left open by Matter of Violi, determined that where the decedent’s contract right was enforceable at the time of his death, the contract right survived decedent’s death.


When this action was commenced, defendant held, in his name alone, 685,361 shares of EVCI stock and 349,963 stock options (together hereinafter the EVCI stock and options) that had been obtained during the parties’ marriage. In addition, defendant owned a substantial stock portfolio in an account maintained by Dain Rauscher Securities (the Dain Rauscher ac*871count). It was agreed by the parties in the course of this litigation that the EVCI stock and options and the securities held in the Dain Rauscher account (hereinafter the Dain Rauscher stock) were <mask> that is subject to plaintiffs equitable distribution claims.


Separately, the proof showed that one of the liens satisfied by the 2010 refinancing concerned an additional $80,000 lien against the marital residence, when it was still separate property, incurred to finance defendant’s second business venture with his cousin, Gus Votsis and the third investor. Inasmuch as the 2010-2011 refinancing concerned what had shortly before become <mask>, the lien thereby constituted marital funds (in the form of a marital debt, Nidositko, 92 AD3d at 656, citing Loria v Loria, 46 AD3d 768, 770 [2d Dept 2007]). Although defendant might argue that the 2010-2011 series of transactions would be beyond the reach of the court under Mahoney-Buntzman v Buntzman (12 NY3d 415, 420-421 [2009]), the extraordinary history of financial malfeasance in this case requires consideration of it in determining whether any credit by reason thereof is warranted. (12 NY3d at 421-422, citing Do*658mestic Relations Law § 236 [B] [5] [d] [11].) The court determines that no credit to defendant arising from the refinancing is appropriate.


We find defendant’s remaining contentions lacking in merit. The essentially equal distribution of <mask> by in-kind distribution rather than by liquidation was well within Supreme Court’s discretion and supported by the record. Nor do we find error in the bifurcation of the trial. Defendant’s contention that Supreme Court lost jurisdiction to equitably divide the marital property by signing a judgment of divorce which contained a decretal paragraph scheduling a trial on the issue of equitable distribution is simply incorrect. It was not a final judgment of divorce (see, Garcia v Garcia, 178 AD2d 683) and may be characterized as "nothing more than a decision stating the intention on the part of the court to *717divorce the parties in the future” (Sullivan v Sullivan, 174 AD2d 862; cf., Zack v Zack, 183 AD2d 382).


Defendant does not dispute that the three plans constitute <mask> subject to equitable distribution, and the parties have agreed that plaintiffs share shall be 50%. At issue is the method of distribution. Defendant contends that the marital portion of the plans is derived from the 9.5 months that elapsed from the implementation of the plans to the date of service of the summons in this action, and seeks to apply the distributive formula employed in Majauskas v Ma*270jauskas (61 NY2d 481), utilizing as the denominator the dates on which defendant is entitled to exercise the benefits provided by each plan. Plaintiff contends that the ISOP and RRP plans are not analogous to a pension or form of deferred compensation, since the benefits were fixed as of November 18, 1993, and there will be no incremental increase in benefit value as a result of defendant’s continued employment, thus rendering the Majauskas formula inappropriate.


*243“If the benefit is a thing of value and was earned in whole or in part during the marriage, it may be considered <mask> subject to equitable distribution. Domestic Relations Law § 236 (B) defines ‘marital property’ as ‘all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held.’ In identifying nothing less than ‘all property” acquired during the marriage as marital property, this section evinces an unmistakable intent to provide each spouse with a fair share of things of value that each helped to create and expects to enjoy at a future date (see, DeJesus v DeJesus, 90 NY2d 643). There is, in fact, a presumption of marital property ‘premised on the contemporary view of marriage as an economic partnership, crediting each party’s contributions, whether monetary or not, to the growth and value of the marriage’ (id., at 648). Thus, marital property consists of ‘a wide range of intangible interests which in other contexts might not be recognized as divisible property at all’ (id., at 647).” (At 143-144.) After reviewing its prior holdings on what might constitute marital property, the DeLuca Court focused its analysis on whether the benefits at issue were “intended as compensation for past services rendered” (at 145), and then held as follows:


In 1993, upon granting plaintiff a divorce, Supreme Court distributed the parties’ <mask> pursuant to the statutory factors detañed in Domestic Relations Law § 236 (B). It awarded, inter alia, a distributive award of $2,000 to defendant as well as permanent maintenance in the amount of $150 weekly until plaintiff reached age 70, reduced to $75 thereafter. The primary issues raised herein concern the valuation of plaintiff’s pension and the maintenance award.


Husband challenges the trial court's award of maintenance to Wife and its division of <mask>. Because Points One and Two both focus upon the maintenance award, we will first explain the statutory provisions regarding maintenance, and then address the substantive arguments of Points One and Two. Then we will discuss the statutory provisions regarding the division of marital property before resolving Point Three.


In this action for a divorce, a trial was conducted of the contested issues of equitable distribution, child support to be paid to defendant and maintenance and counsel fees to be paid to plaintiff. The essential facts, as found by Supreme Court and supported by the record, follow. The parties were married for approximately 20 years. Defendant, employed primarily as an operating engineer, had estimated total annual earnings of $48,000. Plaintiff worked two jobs, for which *787she earned approximately $17,500 and received a free room. The parties have two daughters, Kimberly, a full-time college student, and Danielle, a high school senior who resides with defendant. Supreme Court rendered a decision and judgment of divorce, inter alia, (1) identifying and valuing the parties’ <mask> and the debt attributable thereto and equally distributing the same, (2) awarding plaintiff maintenance of $400 per month for four years, (3) awarding plaintiff counsel fees of $1,000, and (4) relieving plaintiff of any child support obligation for the period commencing June 28, 1993. Defendant now appeals.


The defendant claims that prior to the commencement of the divorce, the home was rented to a tenant whose rental income paid for the majority of the costs of maintaining the property. However, the tenant has since moved out and the defendant claims that he has been paying approximately $2,540 a month for maintenance of the home for the past couple of months and can no longer afford to do so. The defendant states that he can no longer afford to make the payments on the <mask>. The defendant also avers that because the plaintiff is not communicating with him, he has been unable to get her to sign a listing agreement. The defendant claims that there was an offer for the purchase of the home at $650,000, and counteroffer made by him at $680,000, that require the plaintiffs consent.


The defendant further claims that he enjoyed a possessory interest in the house as <mask> under section 236 of the Domestic Relations Law. This contention needs no extended discussion. Since the Domestic Relations Law deals with property rights between spouses, before a particular piece of property can be considered marital property there must be some showing that at least one of the spouses has a possessory right to the property in question. As discussed supra, the auction purchaser enjoyed a superior right of possession to that of the defendant, who had no possessory rights in the house at all. By the same reasoning, the purchaser’s rights were superior to the (then nonexistent) rights of the defendant’s wife subsequent to the auction. As a result, whatever the defendant and his wife owned as marital property, this house was not a part of it at the times relevant to this case, and the Domestic Relations Law cannot cause something to become marital property that was not at the time the property of either or both spouses.


Domestic Relations Law § 236 (B) defines <mask>, in part, as "property acquired by either or both spouses during the marriage” (Domestic Relations Law § 236 [B] [1] [c]). The same statute defines separate property, in pertinent part, as "property acquired before marriage” (Domestic Relations Law § 236 [B] [1] [d] [1]) and that "Separate property shall remain such” (Domestic Relations Law § 236 [B] [5] [b]).


“After divorce, the law practice will continue to benefit from that goodwill as it had during the marriage. Much of the economic value produced during an attorney’s marriage will inhere in the goodwill of the law practice. It would be inequitable to ignore the contribution of the non-attorney spouse to the development of that economic resource.” (Id., at 434, 457 A2d, at 6.) . Another New Jersey appellate court, relying on Dugan and focusing on the plaintiffs past earnings and the probability that such earnings would continue in the future, held that comedian Joe Piscopo’s celebrity goodwill was no different than the professional goodwill of the attorney in Dugan and hence likewise <mask>. (Piscopo v Piscopo, 232 NJ Super 559, 557 A2d 1040 [1989].) Lastly, in California, the professional goodwill of a law practice is marital property. (See, In re Marriage of Fenton, 134 Cal App 3d 451, 184 Cal Rptr 597 [1982].)


In order to conclude, as this court does today, that property transferred or acquired before marriage between individuals who subsequently marry can be characterized as <mask>, certain rigorous criteria must be established lest the statutory restrictions be judicially nullified. First, the transfer of the property must be induced or motivated by the contemplated marriage. Second, the transfer must be consistent with, and in furtherance of, the contemplated economic and spiritual union. By way of example, a gift to one of the parties titled solely in that person’s name would not be afforded status as marital property, in contrast to gifts given to both parties or held as joint owners (for example, wedding gifts of cash deposited in a joint account). Third, there must be a marriage in furtherance of the transfer.* Fourth, the failure to characterize the property as marital would lead to the unjust enrichment of one of the parties. Fifth, the potential unjust enrichment must be of such a magnitude or dimension as to shock the conscience of society and the court.


(i) The length of the marriage; (ii) Age, health, and station in life of the parties; (iii) Occupation of the parties; (iv) Amount and sources of income; *577(v) Vocational skills; (vi) Employability; (vii) Estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income; (viii) Contribution of each party in acquisition, preservation, or appreciation of <mask>, including services as a homemaker; and (ix) The federal income tax consequences of the court's division of property. Ark. Code Ann. § 9-12-315(a)(1)(A)(i)-(ix).


. The Advisory Committee on the EPTL and SCPA, which proposed much of the 1992 amendments, was concerned about providing equity in light of modem ideas of marriage as an economic partnership. The Committee, however, concluded that the “failure to distinguish between ‘marital’ and ‘separate’ property and failure to evaluate the assets of both spouses” could only be redressed by substantial overhaul of <mask> law, concerning rights both at divorce and at death. This, the Committee considered to be well beyond its mandate (1st Report of Advisory Comm on EPTL and SCPA, reprinted in 1993 McKinney’s Session Laws of NY, at 2125, 2134).


As to that portion of the defendant’s interest in his business that was acquired before the marriage and is separate property (see Domestic Relations Law § 236 [B] [1] [d] [1]), in order for appreciation in the value of this asset to be deemed <mask> subject to equitable distribution, the plaintiff was required to “demonstrate the manner in which [her] contributions resulted in the increase in value and the amount of the increase which was attributable to [her] efforts” (Embury v Embury, 49 AD3d 802, 804 [2008] [internal quotation marks omitted]; see Price v Price, 69 NY2d 8, 18 [1986]). The plaintiff, however, did not sustain her burden of proof (see Morales v Inzerra, 98 AD3d 484, 484 [2012]; Embury v Embury, 49 AD3d at 804; Tzanopoulos v Tzanopoulos, 18 AD3d 464, 465 [2005]; Burgio v Burgio, 278 AD2d 767, 770 [2000]).


In this matter, both parties argue about the meaning of the language of the agreement and whether it restricts the wife’s access to any further accumulation in the account. One salient factor emerges for this court: nowhere does the agreement explicitly state that the wife’s share is determined and the agreement never explicitly defines the wife’s “marital share” as excluding gains or losses on the account. The husband can point to the “catch-all” paragraph, set forth above, which follows the paragraph allocating the marital share. In that later paragraph, the agreement details that no property “presently owned by them” or thereafter “acquired” by either of them “shall be or become” <mask>, and adds that only *307“marital property” which is “expressly designated” by them shall be subject to equitable distribution. In the next paragraph, the couple again mention that “all property owned by the parties” currently or “from this day on” would be “unequivocally separate property including any increases thereto” regardless of how such increases occurred. The agreement then states an “unequivocal intent” that the parties are opting out of Domestic Relations Law § 236 (B) (6) as it relates to “any increases . . . of their separate property even though said . . . increases thereto may have occurred subsequent to the physical separation of the parties.”


Arkansas Code Annotated section 9-12-315(a)(1)(A) provides that "at the time a divorce decree is entered, all <mask> shall be distributed one-half (1/2) to each party unless the court finds such a division to be inequitable." Nevertheless, our property-division statute does not compel mathematical precision in the distribution of property; it simply requires that marital property be distributed equitably. Williams v. Williams , 82 Ark. App. 294, 108 S.W.3d 629 (2003).


(i) The length of the marriage; (ii) Age, health, and station in life of the parties; (iii) Occupation of the parties; (iv) Amount and sources of income; (v) Vocational skills; (vi) Employability; (vii) Estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income; (viii) Contribution of each party in acquisition, preservation, or appreciation of <mask>, including services as homemaker; and (ix) the federal income tax consequences of the court's division of marital property. Ark. Code Ann. § 9-12-315(a)(1)(A)(i-ix) (Repl. 2015). In addition, "[w]hen property is divided according to the foregoing considerations the court must state its basis and reasons for not dividing the marital property equally between the parties, and the basis and reasons should be recited in *859the order entered in the matter." Ark. Code Ann. § 9-12-315(a)(1)(B).


This court reviews a circuit court's division of <mask> de novo, but we will not reverse the circuit court's findings of fact unless they are clearly erroneous, or against the preponderance of the evidence. See Kelly v. Kelly , 2014 Ark. 543, at 5, 453 S.W.3d 655, 660. Further, a circuit court "has broad powers to distribute property in order to achieve an equitable distribution." Keathley v. Keathley , 76 Ark. App. 150, 157, 61 S.W.3d 219, 224 (2001). The overriding purpose of the property-division statute, Arkansas Code Annotated section 9-12-315, is to enable the court to make a division of property that is fair and equitable under the circumstances, and a circuit court's unequal division of property will not be reversed unless it is clearly erroneous. Id. In reviewing a circuit court's findings, this court defers to the circuit court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id.


"[A] party is free to dispose of his marital assets as he sees fit so long as such disposition is not fraudulent or intended to impair the other spouse's interest such that it may properly be classified as a dissipation of the marital estate." Ensor v. Ensor , 431 S.W.3d 462, 472 (Ky. App. 2013). However, in determining a just distribution of the marital estate, it is proper for the trial court to consider whether one of the parties dissipated or wasted marital assets if the property is expended "(1) during a period when there is a separation or dissolution impending, and (2) where there is a clear showing of intent to deprive one's spouse of his or her proportionate share of the <mask>." Robinette v. Robinette , 736 S.W.2d 351, 354 (Ky. App. 1987) ; See also Brosick v. Brosick , 974 S.W.2d 498, 500 (Ky. App. 1998). Dissipation must be demonstrated by a preponderance of the evidence, and the family court's findings of fact are upheld if supported by substantial evidence. Kleet v. Kleet , 264 S.W.3d 610, 617 (Ky. App. 2007). The family court acts as fact-finder and possesses the sole authority to *829assess the credibility of witnesses. If dissipation is found to have occurred, "the court will deem the wrongfully dissipated assets to have been received by the offending party prior to the distribution." Brosick , 974 S.W.2d at 500. The equitable relief fashioned by the court must bear some relation to the evidence presented.


This was the second time Evelyn and Jim had married each other. Their first marriage ended in divorce in 1987. They remarried in 1993. The parties separated in early January 2014, and Evelyn filed her complaint for divorce on January 23, 2014. Evelyn amended her complaint to seek an unequal division of the parties' property. Jim answered. He filed a counterclaim, claiming that Evelyn had kept all the money she had earned from her employment and her retirement benefits, which he asserted was <mask> separate from that of the parties' joint accounts, and he asked for an accounting. He sought to set aside two conveyances-a warranty deed and a mineral deed-made on June 12, 2012, on the basis that Evelyn exerted undue influence over him. Jim filed a third-party complaint against the couple's two children, Greg and Dena Lynn Smith, asking the court to set aside the June 12, 2012 conveyances in which the children had interests.


"5. Disposition of property in certain matrimonial actions * * * [T]he court, in an action wherein all or part of the relief granted is divorce, or the dissolution, annulment or declara*476tian of the nullity of a marriage, and in proceedings to obtain a distribution of <mask> following a foreign judgment of divorce, shall determine the respective rights of the parties in their separate or marital property, and shall provide for the disposition thereof in the final judgment.”


It is difficult to conceive that any court applying the Equitable Distribution Law4 would require a wife who cosigned loans for her husband’s medical school or living expenses to repay such loans on his behalf as part of a property distribution. Where there is no <mask> to distribute and the wife is not entitled to maintenance, a distributive award can ensure that the wife who invests her cash rather than her credit to further the same common purpose is treated no more harshly.


In this court’s view, Kahn v Kahn should be reexamined. While the ancient rules regarding how married couples hold title to real property embody important legal rights as to third parties, these rights clash with the practical reality of a divorce. When two residences are now required, and one spouse continues to reside in an expensive <mask>, family finances soon become drained to pay an exorbitant mortgage and high taxes. In addition, the recipient spouse sits on the nonresident spouse’s equity (the payor’s share of any equity) in the property—without any recognized contribution—until the final judgment of divorce. The resident spouse gets to use the nonresident spouse’s equity without cost until the final judgment of divorce, a process that can take years, and when the judgment is finally granted, the sale of the property (and the equity payment to the payor spouse) may take even longer.


Plaintiff commenced this action for a divorce by service of a summons with notice stating that the ancillary relief demanded by plaintiff was, inter alia, equitable distribution of marital assets. Upon defendant’s default in appearing, and after due notice to defendant, an inquest was conducted on the issue of equitable distribution of <mask>. Supreme Court thereafter granted judgment in favor of plaintiff directing that the marital residence be sold, that plaintiff receive *555from the proceeds approximately $17,000, constituting the amount expended by plaintiff for mortgage payments and repairs after defendant abandoned the premises, the value of plaintiff’s separate property that was applied toward the purchase of the property, and compensation for defendant’s wasteful dissipation of marital assets, and that the balance be distributed 70% to plaintiff and 30% to defendant. More than two years following service upon defendant of a copy of the judgment of divorce with notice of entry, she moved to vacate the judgment upon the ground that, by failing to state that he was seeking more than half of the marital property, plaintiff deliberately misled her concerning the relief sought. Supreme Court denied the motion and defendant now appeals.


Apart from the survivor benefit of REA, ERISA does not mandate that other benefits be provided to a participant’s spouse. In fact, ERISA expressly prohibits alienation of benefits by the plan participant, except by a Qualified Domestic Relations Order (QDRO) issued by a State court in a matrimonial action under the State’s domestic relations law (29 USC § 1056 [d]). ERISA creates no substantive rights in the case of divorce, but only accommodates, by the provisions governing QDROs, rights created by State matrimonial law. In New York, vested or matured rights in a pension plan are considered <mask> subject to distribution in a divorce action to the extent that the benefits result from employment by the participant after the marriage and before the commencement of the divorce action (Majauskas v Majauskas, 61 NY2d 481). There is nothing in the matrimonial law of New York prohibiting a spouse from waiving his or her interest in such marital property by agreement made before or during the marriage in accordance with Domestic Relations Law § 236 (B) (3).


The parties were married in 1980, and there is no issue of the marriage. In 1986, they executed a "separation agreement” which provides for little more than that the parties may separate, that neither could maintain an action for "the reinstitution of conjugal rights”, and that neither would contract debts in the name of the other. The parties specifically disclaimed any present intention to divide their <mask>. Paragraph "second” of the agreement provided: "The parties have heretofore and do herein confirm that they have not divided their personal property nor do they intend to do so at this time. However, nothing herein shall be construed which may interfere with either party obtaining new personal or real property and both understand and undertake that they have full power to dispose of same as fully and effectually for all purposes as if he or she were sole and unmarried, except for joint or marital property which will be the subject of disposition at a later date.” This proviso stops short of a blanket agreement that anything acquired by either party individually subsequent to the agreement would be considered separate property. The reference to "joint or marital property” is difficult to understand, unless the parties contemplated the possibility that they could still acquire marital property. The agreement further provides that "[njothing herein shall be construed as a total, all inclusive agreement but merely a separation agreement to represent their present status and to effectuate the desires of the parties to file said agreement at the request of the parties.” It should be noted that neither party was represented by separate counsel in drafting this agreement. The agreement recites that the parties reached their agreement on their own, and jointly retained a firm of attorneys to act essentially as scriveners in setting down the terms. It states twice that the parties were *801advised by the attorneys to retain separate counsel, but declined to do so.


My conclusion is supported by the decision of the First Department in a somewhat analogous situation (see, Match v Match, 179 AD2d 124 [1992]; but see, Lennon v Lennon, 124 AD2d 788 [2d Dept 1986]). The Court held in Match that when one spouse first obtained a judgment of a separation and the other spouse subsequently commenced an action for a conversion divorce, the cut-off date for the acquisition of <mask> was the date the divorce action was commenced. It reasoned that if the husband had no grounds for divorce (and therefore no right to equitable distribution) until the commencement of the action for a conversion divorce, it would be unfair to penalize the wife by selecting an earlier cut-off date (Match v Match, supra, at 132).


Here, the “thing of value” is the personal or professional goodwill of a stockbroker or financial advisor. Justice Silbermann’s decision in Golub v Golub (139 Misc 2d 440 [Sup Ct, NY County 1988], supra) is particularly instructive in deciding whether personal or professional goodwill is <mask> as that decision equated the enhanced earning capacity of a celebrity with professional goodwill and the goodwill of a business. As stated in Golub, “When a person’s expertise in a field has allowed him or her to be an exceptional wage earner, this generates a value similar to that of the goodwill of a business.” (Golub, supra, at 445-446.) In applying O’Brien (supra), Justice Silbermann held that “the skills of an artisan, actor, professional athlete or any person whose expertise in his or her career has enabled him or her to become an exceptional wage earner should be valued as marital property subject to equitable distribution.” (Golub, at 447.) The rationale of this holding was clearly not limited to the unique careers of celebrities. Rather, it was predicated on a logical, uniform extension of the rule established in O’Brien. Again quoting Justice Silbermann:


Because Mike acquired the property before his marriage to Bobbie Jo, it was non<mask>. The statutory definition of marital property excludes property acquired before the marriage. Ark. Code Ann. § 9-12-315(b)(1) (Repl. 2015). The trial court's finding that the property was "converted" into marital property by using it as collateral for loans is clearly erroneous. A non-owning spouse may be entitled to an interest in the other spouse's nonmarital property, but the nonmarital property itself is not transformed into marital property by virtue of the expenditure of marital funds to reduce debt or to make improvements. Jones, supra.


[4] A judicial abuse of discretion exists if the reasons or rul- ings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition. 9 ANALYSIS [5] In a dissolution action, the equitable division of property is a three-step process. 10 The first step is to classify the parties’ property as either marital or nonmarital, setting aside the non- <mask> to the party who brought the property to the marriage. 11 The second step is to value the marital assets and marital liabilities of the parties. 12 And the third step is to cal- culate and divide the net marital estate equitably between the parties. 13 Here, the parties address three discrete issues within the three-step process. [6-8] The first two issues contest the district court’s deter- minations regarding the extent to which assets and debts were marital or nonmarital. Any given property can constitute a mix- ture of marital and nonmarital interests; a portion of an asset can be marital property while another portion can be separate property. 14 The burden of proof rests with the party claiming that property is nonmarital. 15 Likewise, the burden to show that a debt is nonmarital is on the party making that assertion. 16 [9,10] The last issue addresses the division of specific assets. In a divorce action, the purpose of a property division is to distribute the marital assets equitably between the parties. 17 Tierney v. Tierney, supra note 5. Vanderveer v. Vanderveer, ante p. 196, 964 N.W.2d 694 (2021). Id. Id. Id. Higgins v. Currier, 307 Neb. 748, 950 N.W.2d 631 (2020). Doerr v. Doerr, 306 Neb. 350, 945 N.W.2d 137 (2020). Vanderveer v. Vanderveer, supra note 10. Doerr v. Doerr, supra note 15. - 337 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports KAUK v. KAUK Cite as 310 Neb. 329


As previously noted, the Darlings’ divorce judgment “ordered and adjudged” that, except for the coop, “any and all <mask> [had] been previously divided between the parties to their mutual satisfaction.” In addition, the judgment “ordered and adjudged” that “neither party shall have any claim against, or interest in, the property of the other”; “the parties waive any claim for spousal support and/or maintenance as against the other party both now and in the future”; and that “the parties waive any claim for counsel fees with respect to [the] proceeding as against the other party both now and in the future.”