Okay... Here's a nice little final exam question:

Wife has day job and writes children's books as a hobby. She's never gotten any published, but is trying, so far unsuccessfully. Getting divorced. Husband makes a claim to ED to essentially the inchoate value. She has written ten and she has never had a book published previously. Every book was, however, written within the four corners of the 30 year long marriage. No marital funds were used, except for paper, toner cartridges envelopes, toll calls and postage.

This is not an actual case, but an academic one. What happens next?

I would treat this under active/passive analysis. The books won't sell or generate anything unless she actively pursues publication. They have no value now but might if she makes it happen. So, he gets nothing now and she should receive them free and clear.

Respectfully... I really don't know if it's all that clear cut. I am a sculptor (this is just one of a myriad of competing arguments, and there are many). I am a lawyer in my day job. I have a bunch of very nice figurines in my basement. I've never sold any. They are nice, though. My wife likes them and thinks they are wonderful (although she definitely hates my guts and wants me dead). She claims to own 50% of them, since I crafted them during our 30 year marriage whilst she watched TV on her own to pass what would have been our alone time. An appraiser comes in and says some are ornamental at one range of value, and others are actually collectable at another approximate range of value. Wouldn't that be subject to ED? This hypo is a lot like a Zen Koan. I don't believe it is that simple, but that's just me. Appreciate everyone's thoughts, since it's just a thought piece, but it really could come up.

Fact is that there's no reported or unreported cases that I can identify even close to this issue. It is extremely far from cut and dry. It is not statuary. It is most akin to potentially a Harry Potter or a Beatles tune (know about them, millennials? - always have to ask) that has 1) yet to be published; and 2) with no previous like publications. Rothman 2nd and 3rd prongs are seriously in Limbo, and likely to settle in most cases. So... What happens next in a tired case. Give me your takes. This is quite interesting to me anyway.

Because the effort used to create them occurred during the marriage, I say the value of the books is certainly "in the pot."  However, if she actively attempted to get them published only after the marriage was over, she would certainly be entitled to a much bigger piece of the royalty pie.  

Similar to a bonus paid sometime after the divorce complaint is filed, but based on performance during the marriage, the compensation received for her work is certainly subject to E.D. 

This is why I find this to be such an interesting hypo. Okay... let's assume they both own the unpublished children's books. Can he court publishers?

Such fun... and so with Harry Potter. Books take a long time (unless they are mine or endorsed by Oprah) to make any money. Rothman: Value; How? Rothman: Distribution; How much? Wild thing, no?

A patent is less inchoate than an unpublished book, although it is copyrighted when mailed with the (c) symbol. Also, the per se copyright costs nothing from marital assets, and the patent arguably does, if the lawyer (if any) was paid for with joint marital funds. This is a potentially complicated issue because the valuation piece is insanely speculative, while the fact that these kids books were 100% written during the marriage is undisputed.

It would appear that the issue is not with the first prong of Rothman:

"In receiving and considering evidence designed to equip him to make an equitable distribution of marital assets, a trial judge enters upon a three-step proceeding. Assuming that some allocation is to be made, he must first decide what specific property of each spouse is eligible for distribution."

That is not to say that there is not some room for creative argument. In a marriage of shorter term, for instance, particularly with fictional writing, novels, screenplays, TV concepts and such, the writer may argue that the entire idea was locked in her imagination prior to the marriage and that she eventually found the time to put pen to paper during the marriage. Arguably, however, this may be more of a third prong argument than one resisting inclusion.

The challenge lies in prongs 2 and 3:

"Secondly, he must determine its value for purposes of such distribution. Thirdly, he must decide how such allocation can most equitably be made."

Then, in footnote 6:

"The suggestion has been offered that in undertaking to effect an equitable distribution of marital assets, the trial court should, to establish a starting point, presumptively assign some proportion, generally mentioned as 50%, of all eligible assets to each spouse. We disapprove of this proposal. No basis for it is to be found in the statute itself, it would import into our law concepts now held chiefly, if not solely, in those states where community property law principles have gained acceptance, and we foresee that it might readily lead to unjust results. Rejecting any simple formula, we rather believe that each case should be examined as an individual and particular entity. The point has been well expressed in an opinion of the Supreme Court of Wisconsin, The formula for division derives from the facts of the individual case. If it is argued that this approach gives great leeway and also places a heavy responsibility on trial courts in divorce cases, there is no gainsaying that fact. However, both flexibility and responsibility are called for by the endless variety of human situations that come to court in family cases. No two are exactly alike. [Lacey v. Lacey, 45 Wis.2d 378, 173 N.W.2d 142, 145 (1970)]."

IMO prong 2 cannot be credibly satisfied by prospective expert opinion. Far too many variables on far too many plains. There is no case law directly on point here. It would appear that the only reliable method would be to direct some sharing post-judgment, after a contract is struck and actual revenues occur.

Prong three is the real killer! Think about it. If a book gets published and starts making money pendent lite or shortly after the divorce, that's one thing. If, on the other hand, time passes, along with additional efforts and expenses expended and incurred by the author, including perhaps agency costs, you've got a bit of a Gordian Knot on your hands, wouldn't you think? More food for thought - CJR

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