I
In this matrimonial action, we address a situation where one spouse (the defendant wife) has contributed, both by direct financial means and by providing homemaker services, to the other spouse’s (the plaintiff husband’s) attainment of a medical education which has culminated in a medical license during the course of the marriage, and an action for divorce is commenced by the husband at a time when there is a minimum of concrete, liquid assets that qualify as “marital property” (Domestic Relations Law § 236 [B] [1] [c]) to equitably distribute because there has not been time to translate the medical license into any meaningful tangible financial gains. The trial court concluded that plaintiff’s medical license, obtained during the marriage, qualified as “marital property”, and awarded defendant the sum of $188,800, payable over 10 years, based upon a determination that the present value of the subject license was $472,000 and that defendant was entitled to 40% of said amount (114 Mise 2d 233). In determining the present value of the “marital property” the trial court relied upon the testimony of an expert witness, who used the technique of capitalizing the excess-earning potential differential between a college graduate and a general surgeon over plaintiff’s productive work life expectancy. I believe that the court’s decision to treat a professional license as marital property was correct because it is consistent with the legislative intent underlying the enactment of Domestic Relations Law § 236 (B) and with the actual language employed by the statute. I further conclude that under the circumstances of this case the approach used in determining the amount of the “distributive award” (Domestic Relations Law § 236 [B] [1] [b]) that was made was an appropriate one, although other approaches (to be discussed, infra) may also have been considered proper.
*234II
The facts of this case are neither complicated nor unusual. One court has recently characterized the situation as “so familiar as to be almost a cliche” (Matter of Washburn v Washburn, 101 Wn 2d 168,173, 677 P2d 152,155). The parties to this action were married in April 1971. At that time they were both working as teachers in a parochial school. The plaintiff completed his undergraduate education at night and left his full-time teaching position to complete a year of premedical courses, while the defendant continued to teach. In June 1973, the parties went to Mexico, where they resided for approximately 3¥2 years while the plaintiff attended medical school at the University of Guadalajara. The plaintiff attended medical school full time, and he contributed the $10,000 he obtained from student loans toward the parties’joint living expenses. The defendant worked at various teaching and tutorial jobs earning a total of approximately $11,650 while the parties lived in Mexico, which earnings were utilized for their family purposes. The plaintiff’s medical school tuition was paid for by contributions from his family and the defendant’s father.
The parties returned to the United States in January 1977. The defendant resumed her teaching position at the parochial school, where she earned between approximately $8,100 and $9,000 per year until this action was commenced. The defendant testified that she could have more than doubled her teaching salary if she had earned the additional credits needed to obtain a permanent teaching certificate. In addition to her full-time employment, during the period of the marriage, the defendant performed most of the household chores and managed the parties’ finances. After the parties returned to this country, the plaintiff devoted most of his time to completing his medical school education and the training necessary to obtain a license to practice medicine. He served a one-year training residency in internal medicine, and at the time of trial he was completing his first year of residency training in general surgery. In October 1980, he was awarded a license to practice medicine, and two months later, in December 1980, plaintiff commenced this action for divorce. The trial court found that defendant had contributed approximately 76% of the couple’s total income during the marriage. The marriage was a childless one.
III
When New York enacted its Equitable Distribution Law in 1980 (L 1980, ch 281), the new statute was considered to be a major reform of the previous law, which had provided for the *235distribution of property to the title-holding spouse upon a divorce (Scheinkman, 1981 Practice Commentary, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law C236B:4, 1977-1984 Supp Pamph, pp 184-185). The new law recognized that the marriage relationship is one which contains the element of an economic partnership (Governor’s memorandum on approving L 1980, ch 281,1980 McKinney’s Session Laws of NY, at 1863), and in furtherance of this recognition, a new concept, “marital property”, was incorporated as an integral part of the statute. This unique concept of property, solely a statutory creation as it pertains to New York divorce law, is broadly defined by the statute as “all property acquired by either or both spouses during the marriage and before * * * the commencement of a matrimonial action, regardless of the form in which title is held * * * Marital property shall not include separate property as hereinafter defined” (Domestic Relations Law § 236 [B] [1] [c]; emphasis supplied). Separate property is then defined in specific and limited terms (Domestic Relations Law § 236 [B] [1] [d]). In creating great flexibility in effectuating an appropriate distribution of marital property, the courts are directed to distribute such property “equitably between the parties, considering the circumstances of the case and of the respective parties” (Domestic Relations Law § 236 [B] [5] [c]). The courts must consider “any equitable claim to * * * or direct or indirect contribution made to the acquisition of such material property by the party not having title, including * * * contributions and services as a spouse, parent, wage earner and homemaker, and to the * * * career potential of the other party” (Domestic Relations Law § 236 [B] [5] [d] [6]). The court must consider, inter alia, the “non-liquid character” of the marital property, the probable future financial circumstances of the parties, and the difficulty of evaluating any interest in a profession (Domestic Relations Law § 236 [B] [5] [d] [7], [8], [9]). Finally, if equitable distribution is impractical or burdensome, the court may employ the concept of a “distributive award” (Domestic Relations Law § 236 [B] [1] [b]) to achieve equity between the parties (Domestic Relations Law § 236 [B] [5] [e]). A distributive award is a broadly defined vehicle available to facilitate or effectuate a division of property.
IV
In recognizing that a license to practice medicine constitutes “marital property”, Trial Term did no more than give effect to the legislative intent underlying the enactment of the Equitable Distribution Law (McKinney’s Cons Laws of NY, Book 1, Statutes § 92) by following the natural and obvious meaning of the *236language employed in the statute (McKinney’s Cons Laws of NY, Book 1, Statutes § 94). The broad definition of marital property (see generally, Majauskas v Majauskas, 61 NY2d 481), the specific recognition of the role of a spouse as a wage earner and homemaker, the mandate to consider both the contribution to the career potential of the other spouse and the probable future financial circumstances of the parties, and the direction to consider the difficulty in evaluating any interest in a profession all inexorably lead to the conclusion that defendant’s contributions to plaintiff’s achievement of a medical license may not go unrecognized by resorting to irrelevant common-law concepts of property (Foster, A Practical Guide to the New York Equitable Distribution Divorce Law, at 48-49; 2 Foster and Freed, Law and the Family — New York § 33:4-A [1984 Cum Supp]; Florescue, “Market Value”, Professional Licenses and Marital Property: A Dilemma in Search of a Horn, Dec. 1982 NY St BA Fam L Rev 13; Conner v Conner, 97 AD2d 88, 107-108 [concurring opn of Bracken and Brown, JJ.]). The simple reality of the situation is that while they were married, defendant contributed mightily to plaintiff’s substantial professional achievement. Plaintiff may not simply leave the marriage with his enhanced “human capital” potential intact for his own personal use (Bruch, The Definition and Division of Marital Property in California: Towards Parity and Simplicity, 33 Hastings LJ 771, 818), while defendant’s labors are ignored and her justified expectations of increased material acquisitions go unrewarded simply because she may not be entitled to “maintenance” (Domestic Relations Law § 236 [B] [6]) as an otherwise self-supporting individual. “Equitable means what is fair, just and right” (Scheinkman, 1981 Practice Commentary, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law C236B.T0, 1977-1984 Supp Pamph, p 196) and a realistic reading of the phrase “marital property” so as to include the attainment of a medical license is consonant with the intent and language of the statute and in accord with the concept of equitable distribution.
The major arguments raised against treating a medical license as marital property are unconvincing. Cases relied upon by the majority such as Lesman v Lesman (88 AD2d 153, appeal dismissed 57 NY2d 956), place an undue emphasis on the fact that a medical license does not fit within conventional common-law concepts of property. As discussed heretofore, however, the concept of “marital property” is a purely statutory creation which must be used to accomplish what is fair and just in dividing the attainments of the marriage, material or otherwise, *237between the parting spouses. In seeking to do equity it is unnecessary and unrealistic to rely solely upon prior conventional concepts of property.
A major reservation expressed about a present award based upon anticipated future earnings concerns the speculative and restrictive nature of such an award. A medical school graduate licensed to practice surgery may decide that he in fact does not want to practice medicine at all, but would rather undertake a less financially rewarding pursuit. He may decide he only wishes to teach medical studies, and he will thus not receive the financial rewards of a practicing surgeon. He should not be forced to practice medicine, it is argued, simply to meet the obligations imposed upon him by a large judgment.
I believe that this concern is a legitimate one, but one which serves as an inadequate basis for precluding an award such as the one in the instant case. This is so for several reasons. Although the measurement of damages may be an inexact science, the dilemma should be dealt with as a valuation problem, and should not serve as a basis for erasing a substantive right (see, 2 Foster and Freed, Law and the Family — New York § 33:8-F [1984 Cum Supp]). In wrongful death actions, awards are made which involve an assessment of prospective and indefinite damages that are necessarily speculative in nature (67 NY Jur, Wrongful Death, §§ 157, 163, 166). Good will is intangible in form, is based on expectations, and has no existence as property in and of itself, yet damages are available for injuries to good will (25 NY Jur, Good Will, §§ 1, 2). Techniques exist for putting a present value on future earning capacity (Weitzman, The Economics of Divorce: Social and Economic Consequences of Property, Alimony and Child Support Awards, 28 UCLA L Rev 1181,1219), and the “increased human capital” which has been attained by one spouse during the marriage must be recognized if equity is to be done (Bruch, The Definition and Division of Marital Property in California: Towards Parity and Simplicity, 33 Hastings U 771, 818). This court has already held that an employment pension plan is subject to equitable distribution despite the fact that the amount of the pension may be speculative or may for other reasons not reach fruition (Damiano v Damiano, 94 AD2d 132). It has been held that an ongoing law practice is marital property subject to equitable distribution (Litman v Litman, 93 AD2d 695, affd 61 NY2d 918). In reality, an award based upon such a practice is premised on certain expectations and predictions concerning the continuing viability and success of the practice.
*238The key to the valuation problem is to carefully focus upon and scrutinize the facts of each individual case in an effort to achieve the ultimate goal of an equitable result. In a particular situation the trial court may find, as a question of fact, that a duly licensed surgeon will not utilize his license to practice medicine, or will pursue a less lucrative teaching position. In some situations a divorce action will be initiated days after a medical license is obtained, in some situations years will pass, and in some situations decades will pass before a marriage faces dissolution. There is no reason to impose an arbitrary cutoff date to determine whether spousal contributions to the achievement of the license will be rewarded. It does not make sense to make an award of “marital property” because a spouse has been practicing a profession two weeks before the divorce action was initiated, and not make an award of “marital property” because a licensed spouse will not launch the practice until two weeks after the divorce action is commenced. In some situations a court may determine that one spouse has made no contribution to the other spouse’s attainment of a professional license obtained during the marriage. In short, the untold number of situations that may arise can only be dealt with on an individual case-by-case basis. The tremendous flexibility available under the Equitable Distribution Law provides a basis for achieving equity in each individual case.
I would simply hold that the procedure employed in making an award in this specific case was an appropriate one. During the course of the nine years of marriage preceding the commencement of this divorce action, the defendant wife made major financial contributions, as well as intangible contributions, towards plaintiff’s attainment of a medical license. There is adequate expert testimony in the record to support the determination made as to the present value of the license in issue. In light of the duration of the marriage, defendant’s substantial contribution to plaintiff’s career potential, and based upon all of the other circumstances to be considered herein (Domestic Relations Law § 236 [B] [5]), I believe that the award of 40% of the present value of the subject license was appropriate. Although the trial court’s statement of its consideration of all of the requisite factors was somewhat sparse (Nielsen v Nielsen, 91 AD2d 1016), the record allows for an independent determination that, in light of all the statutory factors to be considered, the award here was a proper one (Duffy v Duffy, 94 AD2d 711).
In this case, as an alternate theory of recovery, defendant sought an award, restitutory in nature, to receive compensation in the amount by which her monetary contributions to the *239parties’ support, along with the contributions from her family, exceeded the sums contributed by plaintiff and his family over the course of the marriage. Although the court chose to adopt the “marital property” theory of recovery, and I would affirm its discretionary selection of that remedy, I believe that in a fitting case a restitutory award could be considered to be a proper remedy (see, Hubbard v Hubbard, 603 P2d 747 [Okla]; In re DeLa Rosa v DeLaRosa, 309 NW2d 755 [Minn]; Mahoney v Mahoney, 91 NJ 488, 453 A2d 527). A restitutory award is more amenable to concrete proof than the remedy that was actually adopted herein (Note, Equitable Distribution of Degrees and Licenses: Two Theories Toward Compensating Spousal Contributions, 49 Brooklyn L Rev 301). However, in this case, the marital property award is preferable to a restitutory award, in that it recognizes the loss of the reasonable expectations of defendant, does not relegate her to the role of an alternative to a student loan, and is consistent with the intent of the equitable distribution statute. I simply note my view that under appropriaté circumstances (such as, for example, where the court determines the professional license attained will not result in an actual professional practice) a restitutory award ought to be an available remedy.
I must also express the grave reservations I have about the remedy proposed by the majority. The core of its solution is to send defendant back to school for 15 months of postgraduate work. They ignore the fact that the record is devoid of any indication that defendant has expressed a desire to return to school. Is she being sent back to school even if it is contrary to her desires, and if she refused to return to school, is she left without a remedy? It appears that because the majority has refused to retreat from a position that requires an award to fit within common-law concepts of property, they have fashioned an award that may well prove to be illusory.
V
The holding of this court in Conner v Conner (97 AD2d 88) is distinguishable from this case and does not support plaintiff’s claim that his medical license is not to be treated as “marital property”. In that case Special Term had denied a motion by defendant wife for expert fees for an evaluation of plaintiff husband’s education, which had resulted in a Master’s degree in business administration, for purposes of equitable distribution, but awarded defendant $500 in expert fees to evaluate all other marital property and to place a value on defendant’s homemaker services, if any. Defendant appealed from so much of the order as *240denied her motion for expert fees for an evaluation of plaintiff’s education. This court modified the order of Special Term by increasing the $500 award for expert fees to $750, and by adding a provision thereto that the expert fees awarded might be used to evaluate the parties’ present and future financial circumstances, including their education and work experience. Although all five members of the court agreed that there should be an increase in the amount of the fee and that the fee was to be used, inter alia, to evaluate the parties’ education and work experience, the court divided on whether plaintiff’s degree was to be deemed “marital property”. In separate opinions, three of the members of the court concluded that it was not to be so classified, and two of the members of the court joined in an opinion to the contrary.
Unlike Conner (supra), in this case we are dealing with more than a college degree. Here, plaintiff had been licensed to practice medicine prior to the commencement of this action. The licensing authority had thus conferred upon him the regulated privilege of practicing medicine (see, Education Law §§ 6500, 6503; People ex rel. Bennett v Laman, 277 NY 368; 35 NY Jur, Licenses and Permits, §§ 1, 3). The privilege of applying his previous education and training vested, allowing plaintiff to finally convert his training into a professional practice, and also affording him certain due process rights (see e.g., Matter of Sinha v Ambach, 91 AD2d 703). In short, our case presents a scenario where the educational background has been converted into a concrete privilege to practice the profession of medicine. That privilege, being in the nature of a franchise, was properly considered by the trial court as marital property for the purpose of equitable distribution.
VI
The other issues raised by this appeal may be quickly dealt with. An award of counsel and expert witness fees to defendant was appropriate under the circumstances of this case. The award of maintenance arrears was proper. Under the circumstances the court correctly refused to consider marital fault as a factor in its decision (Blickstein v Blickstein, 99 AD2d 287).
Accordingly, the judgment appealed from should be modified by deleting that part of the fourth and fifth decretal paragraphs which refer to a medical school degree, and as so modified, the judgment should be affirmed insofar as appealed from by the plaintiff, without costs or disbursements. For the reasons stated by the majority, I concur that the defendant’s cross appeal *241should be dismissed as abandoned, without costs or disbursements.
Niehoff and Lawrence, JJ., concur with O’Connor, J.; Thompson, J. P., concurs in part and dissents in part, in an opinion with which Weinstein, J., concurs.
Judgment of the Supreme Court, Westchester County, dated July 6, 1982, modified, on the law, by deleting the fourth, fifth, sixth and seventh decretal paragraphs thereof. As so modified, judgment affirmed insofar as appealed from by the plaintiff, without costs or disbursements, and matter remitted to the Supreme Court, Westchester County, for further proceedings in accordance with the opinion of O’Connor, J., herein.
Cross appeal by defendant from stated portions of said judgment dismissed as abandoned, without costs or disbursements.