concurring in part and dissenting in part:
The majority holds that the district court did not err in using an excess earnings method to establish the value of the husband’s interest in his law firm despite the fact that he was bound by a partnership agreement which established the value of that interest. I believe that where a partnership agreement exists, is consistently applied to all partners, and reflects the considered judgement of the partners as to the value of their interests, the value of a partner’s interest should be governed by that agreement. Accordingly, I respectfully dissent from Part VII of the majority opinion.
I
The husband has been a partner in a large, well-established law firm since 1976. The firm had been in existence long before the husband became a partner, and at the time of the trial, the firm consisted of ninety partners and sixty-six associates. The firm operates pursuant to a detailed partnership agreement, which, in part, sets forth a partner-withdrawal formula based on the value of receivables and a proportionate share of the firm’s capital. No value for goodwill is included. If a partner chooses to withdraw, that partner’s interest in the law firm is based on this formula. The agreement also provides for payments to partners on death, retirement and disability. The partnership books and the partners’ interests are periodically reviewed and updated.
During trial, the partnership agreement was admitted into evidence, and an expert witness for the husband explained the partner-withdrawal formula. There was no dispute that if the husband left the firm, he would receive $42,442, which represented his share of the receivables plus his share of the capital account. Furthermore, he could not sell his interest because the partnership agreement includes a restrictive buy-sell provision prohibiting such sale.
The expert witness also testified about another method of determining value based on excess earnings, which he suggested as an alternative only if the district court determined that the value of the husband’s interest as determined by the partnership agreement was not binding in the dissolution of marriage proceeding.1 The district court rejected the value of the husband’s interest in the partnership based on the partnership agreement, finding that because he had every intention of staying with the firm, the partnership agreement figure ignored “all the present facts and intentions of the parties.” The district court determined the value of the husband’s interest by using the excess earnings valuation method.
On appeal, the husband argues that the district court erred in concluding that the partnership agreement, which is binding on him and the partnership, was not binding in the marital dissolution proceeding.
II
There is no dispute that a spouse’s interest in a professional partnership is a marital asset subject to division in a dissolution proceeding. However, courts are divided as to the means and methods of determining such interest. In Colorado, the value of goodwill incident to a professional practice has been considered a marital asset. *259In re Marriage of Nichols, 43 CoIo.App. 383, 385, 606 P.2d 1314, 1316 (1979).2
In a substantial number of jurisdictions, the courts rely on an existing partnership agreement in valuing a partner’s interest. Peddycord v. Peddycord, 479 N.E.2d 615 (Ind.Ct.App.1985); Weaver v. Weaver, 72 N.C.App. 409, 324 S.E.2d 915 (1985); Hertz v. Hertz, 99 N.M. 320, 657 P.2d 1169 (1983); Finn v. Finn, 658 S.W.2d 735 (Tex.Ct.App. 1983); Holbrook v. Holbrook, 103 Wis.2d 327, 309 N.W.2d 343 (Ct.App.1981); Stern v. Stem, 66 N.J. 340, 331 A.2d 257 (1975). Some courts find that a partnership agreement presumptively controls the value of a partner’s interest, see Stem v. Stern, 66 N.J. 340, 331 A.2d 257, 261 (1975), while others find that the agreement absolutely controls. See Hertz v. Hertz, 99 N.M. 320, 657 P.2d 1169, 1174 (N.M.1983).
In Stem, the New Jersey Supreme Court found that the amount arrived at from application of the law firm’s partnership agreement, which provided for a fixed sum intended to reflect the partnership’s worth plus the partner’s capital account, should be treated as the presumptive value of the husband’s interest in the law firm. Stem, 331 A.2d at 261. In reflecting on what constitutes the monetary worth of a professional partnership, the court said:
Generally speaking the monetary worth of this type of professional partnership will consist of the total value of the partners’ capital accounts, accounts receivable, the value of work in progress, any appreciation in the true worth of tangible personalty over and above book value, together with good will, should there in fact be any; the total so arrived at to be diminished by the amount of accounts payable as well as any other liabilities not reflected on the partnership books.
Id. (footnote omitted). In conclusion the court stated: “Once it is established that the books of the firm are well kept and that the value of partners' interests are in fact periodically and carefully reviewed, then the presumption to which we have referred should be subject to effective attack only upon the submission of clear and convincing proofs.” Id.
In Hertz, the husband belonged to a law firm which had a stock transfer agreement that included goodwill in the amount of $1.00 among the assets represented by the stock valuation. Hertz, 657 P.2d at 1173-74. In determining the value of the husband’s interest in the law firm, the district court relied on the stock transfer agreement, but added to that value an amount representing goodwill based upon a capitalization of excess earnings. Id. at 1173. The New Mexico Supreme Court found that the district court erred in adding value based on excess earnings because the agreement included a value for goodwill of $1.00. Id. at 1174. The court also held that a non-shareholder spouse is bound to the same terms of a shareholder valuation agreement as a shareholder spouse, thus insuring that the non-shareholder spouse does not receive a greater value than that of the shareholder. The court noted that: “There is a disturbing inequity in compelling a professional practitioner to pay a spouse a share of intangible assets at a judicially determined value that could not be realized by a sale or another method of liquidating value.” Id., quoting Holbrook v. Holbrook, 103 Wis.2d 327, 309 N.W.2d 343, 355 (Ct.App.1981).
The fact that a partnership agreement does not include a value for goodwill does not make it inadequate for purposes of determining a partner’s interest for marital distribution. In Finn v. Finn, 658 S.W.2d 735 (Tex.Ct.App.1983), the husband was a senior partner in a large Dallas law firm and his interest was determined by a partnership agreement that did not include an amount for goodwill. The court found that a two-pronged test should be used to deter*260mine whether goodwill attached to a professional practice was subject to division upon divorce. Id. at 740-41.
First, goodwill must be determined to exist independently of the personal ability of the professional spouse. Second, if such goodwill is found to exist, then it must be determined whether that goodwill has a commercial value in which the community estate is entitled to share.
Id. at 741.
The law firm was found to have goodwill independent of the husband’s professional ability because it conducted business under a name other than that of the senior partners and because it had been providing legal services to the public for more than ninety years. Therefore, the firm’s reputation was built, in large part, by the abilities of the husband’s predecessors in the firm, as well as the abilities of the present partners. Id. The court found that the community estate was not entitled to share in the goodwill of the firm because “[t]he community estate is not entitled to a greater interest than that to which the husband is entitled in the firm’s good-will.” Id. The fact that the husband had no legal right to realize the value of the firm’s goodwill was a decisive factor in the court’s determination that the value of goodwill was properly precluded from the valuation of the husband’s interest in the law firm. Id. at 742.
Here, the husband belonged to a well-established law firm which had been in existence for many years and had many partners and associates. The evidence established that the partnership books were kept in accordance with generally accepted accounting principles, the partnership interests were periodically reviewed, and the value of each partner’s interest was determined without considering an amount for goodwill. The husband was not entitled to receive any value for goodwill, and it is inequitable for his spouse to receive, as part of marital assets, a value that he could not receive.
Relying on In re Marriage of Bookout, 833 P.2d 800, 804-805 (Colo.App.1991), Dugan v. Dugan, 92 N.J. 423, 457 A.2d 1, 9 (1983), and In re Marriage of Hall, 103 Wash.2d 236, 692 P.2d 175, 179-80 (1984), the majority states that the excess earnings method is a generally accepted method for determining the present value of someone’s interest in a business. Maj. op. at 256. This is true where there is no partnership agreement establishing a formula to determine the value. In Bookout, the court of appeals found the excess earnings method appropriate to determine the value of the husband’s interest in his physical therapy practice, but no partnership agreement was involved. In Dugan, the New Jersey Supreme Court adopted the excess earnings approach to evaluate the husband/attorney’s goodwill in his exclusively owned professional corporation for purposes of a divorce proceeding. Again, there was no partnership agreement. In Hall, the court found that the trial court could consider various methods for valuing goodwill including partnership agreements and the excess earnings method. That case, however, involved a medical practice which could be bought and sold and which consisted of only three shareholders.
Where there is a partnership agreement, and when the partnership interests cannot be bought or sold, I am of the view that the agreement should control with respect to the valuation of an interest in that partnership for property division purposes. The district court should have determined whether the books of the husband’s law firm were accurately kept, and whether the value of the partners’ interests was periodically reviewed. Once this was established, the value of the husband’s interest, as set forth in the partnership agreement, should have been adopted absent clear and convincing evidence that it did not reflect the true value of the interest. Accordingly, I respectfully dissent.
. The husband was aware that the wife's expert witness would be using the excess earnings method to determine the value of his interest in the law firm. He presented evidence of value based on the excess earnings method only to ensure that if the district court rejected the value mandated by the partnership agreement, that the court would use the proper capitalization rate to reach the correct value under the excess earnings method.
. This case held that the value of goodwill incident to the husband’s dental practice acquired during his marriage was marital property. The dental practice, however, was not a partnership. Furthermore, in its decision, the court of appeals expressly referred to professions where practices "are bought and sold." Nichols, 606 P.2d at 1315 (emphasis added). In contrast, the Huff case involves a partnership interest which cannot be bought or sold. In 1980, this court granted certiorari to review Nichols, but in 1981 it was dismissed as moot.