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The Massachusetts Appeals Court recently issued a ruling in a case (Canisius v. Morgenstern, 87 Mass. App. Ct. 759) stating that rights to future payments for a novel written during a marriage and movie contract established at the time of divorce could be included in the divisible marital estate.

In this case the husband paid all of the martial expenses and some of the wife’s student loan debt while the wife wrote a book.  The wife’s literary agent negotiated publishing and movie rights from which the wife received initial payments.

As sales of the book increased, their marriage began to deteriorate with the husband eventually filing for divorce.  Massachusetts General Laws chapter 208 section 34 states “[t]he court may assign to either husband or wife all or any part of the estate of the other, including but not limited to, all vested and nonvested benefits, rights and funds accrued during the marriage…”  The Appeals Court ruled that the contractual rights of future payments were not “mere expectancies.”

The case was remanded back to the lower court to determine the percentage of future payments based upon the section 34 factors and the recognition that “with the passage of time, the respective contributions of the parties to the marital partnership, which allowed for the creation of the work, may become attenuated.”   The court went on to say  “That the future royalty, and other, payments in the present case are to be divided on an if and when received basis does not require that such payments continue indefinitely.”

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