Divorce and Dividing Stock Options

Identifying, Classifying and Valuing Stock Options for Equitable Distribution and Income Availability

Recording of a 90-minute CLE webinar with Q&A

Conducted on Wednesday, November 28, 2012

Recorded event now available

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Program Materials

This CLE webinar will prepare family law practitioners to better represent litigants in identifying, classifying and valuing stock options for purposes of both equitable distribution and income availability upon divorce or in the context of post-judgment modification.

Description

Dealing with stock options challenges divorce counsel to identify the nature of the option as vested or unvested, the option’s express terms, and whether the option is the result of marital effort, awarded for work performed that can be linked to the efforts of both spouses during the marriage.

The practitioner must determine whether a particular stock option can be considered a marital asset or income in the context of a divorce or post-judgment litigation. Once such a determination is made, the practitioner must be fully versed in the valuation of that stock option.

Such specified valuation provides the practitioner with even more challenges as several different valuation methods exist, all of which may be applied depending on the particular case presented.

Listen as our panel, comprised of a family law attorney and financial expert, discusses and explains the different types of stock options, the identification, consideration and distribution of these stock options in the matrimonial context, and the appropriate valuation methods for such stock options in the divorce and post-divorce context. The panel will identify gray areas where specific attention to the details surrounding the nature and purpose of the stock option need to be carefully analyzed in order to avoid inappropriate distribution or inaccurate assumptions regarding pre-marital, marital or post-marital assets and income.

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Outline

  1. Accounting/tax issues
    1. Overview of employee stock options
      1. ISO vs. NQSOs
      2. Tax implications
    2. Valuation issues
      1. Intrinsic value
      2. Mathematically derived values
    3. Matrimonial/legal issues
      1. Case law history
      2. Deferred distribution methods
      3. Present valuation with offset
      4. Value used for support
      5. Defining if an option is subject to distribution
      6. Recent developments
    4. Case law
      1. In re Marriage of Hug, 154 Cal. App. 3d 789, 792, 201 Cal Rptr. 676 (1984)
      2. In re Marriage of Miller, 915 P.2d 1314 (Colo. 1996)
      3. In re Marriage of Short, 125 Wn. 2d. 865, 872, 890 P2d. 12 (1995)
      4. Bornamenn v. Bornamenn, 245 Conn. 508, 752 A.2d 978 (1998)
      5. Wendt v. Wendt, 59 Conn. App. 656, 757 A.2d 1225 (App. Div. 2000)
      6. Callahan v. Callahan, 142 N.J. Super. 325 (Ch. Div. 1976)
      7. Pascale v. Pascale, 140 N.J. 583 (1995)
      8. DeJesus v. DeJesus, 90 N.Y.2d 643 (1997)
      9. Murray v. Murray, 128 Ohio App. 3d 662 (1999)
    5. Distribution (two-step process)
      1. Determine the “marital portion” subject to equitable distribution
        1. Distribute vested options only
        2. Present evidence of why options were awarded in order to determine if earned income “during the marriage” or “through marital efforts”
        3. Coverture fraction/time rule
      2. Method of distribution of “marital portion”
        1. Valuation and offset
          1. Intrinsic value
          2. Black-Scholes method of valuation
        2. In-kind distribution
          1. Transfer of title
          2. Trust device
    6. Stock options as income for support
      1. Previously distributed options
      2. Existing, but undistributed options
      3. Projection of future income from past awards
    7. Current developments in stock options
      1. Options to be expensed by corporations
      2. Sarbanes-Oxley Act of 2002
      3. Revenue Ruling 2002-22
      4. Hanson v. Hanson, (A-4492-D0T1) (App. Div. 2002) and the treatment of stock options

Benefits

The panel will review these and other key questions:

  • What is the difference between a vested and unvested stock option?
  • How are different stock options identified?
  • What “time rules” are used in various venues?
  • What different valuation methods can be applied to value a stock option, and under what specific circumstances should the different valuation methods be applied?
  • When should stock options be considered as marital assets subject to equitable distribution, and under what circumstances can and/or should stock options be considered income?
  • How does one equitably distribute a stock option?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.

Faculty

Charles F. Vuotto, Jr.
Charles F. Vuotto, Jr.
Partner
Tonneman, Vuotto, Enis & White

His practice focuses on family law. He is a frequent lecturer at both family law and CPA conferences and seminars. He...  |  Read More

Beaton, Neil
Neil Beaton
Managing Director
Alvarez & Marsal

Mr. Beaton specializes in the valuation of public and privately held businesses and intangible assets for purposes...  |  Read More

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