A) Overview:
Many executives of both public and private companies are
granted stock options and restricted stock units either as an inducement to
join a company, reward for past contributions, or as an incentive to remain
tied to the company. These can represent an extremely lucrative portion of a
marital estate; yet their valuations are often miscalculated.
B) Issues to
Address:
The primary issues to address with respect to stock options
in divorce is whether they are marital, vested, how will they be valued, how
will they be divided, and what are the tax considerations. Whether they are
treated as an asset or income or both will impact property division and spousal
and child support. Options which are awarded and vested during the marriage are
100% marital. For options which are awarded but not vested, a determination
must be made as to whether the options were granted as a result of past service
or future performance.
C) Types of
Stock Options and Tax Consequences:
Stock Options come in two varieties- incentive stock options
and non- qualified stock options. Incentive stock options are not taxed upon
exercise, but rather upon the sale of the underlying stock. Shares held for one
year from the date of exercise and two years from the date of the grant receive
long-term capital gain tax treatment. Incentive Stock Options must be exercised
within 10 years of the grant and they can only be transferred as a result of
the employee’s death. Non-qualified stock options are far more common. They are
taxed at the date of exercise at ordinary income tax rates that reflect the
difference in price between the lesser exercise (strike) price and the fair
market value.
D) Division
and Valuation:
The employee’s benefits have to be reviewed to determine
whether the plan permits the employee spouse to transfer the options in kind to
the non-employee spouse. It is much more likely that an in kind transfer is not
feasible, and therefore a constructive trust might need to be executed whereby
the employee spouse will in fact effectuate the transfer to the trust for the
benefit of the non-employee spouse. In this case, the employee spouse needs to
act as a fiduciary for the ex-spouse well after the divorce is finalized.
There are fundamentally two ways to value the options. One
is known as the intrinsic value that simply measures the difference in price
between the strike price and the value as of the date of divorce. This is very
simple and may significantly undercut the other valuation method known as the
Black Sholes pricing model. Black Scholes factors in various features of the
option such as strike price, time to maturity, current price and historical
price volatility, all of which are adjusted by a risk free rate of return,
namely the rate on a 30 year Treasury. Google provides the daily volatility for
any publicly traded stock and this number can be inserted into a Black-Scholes
calculator. An option on a stock with nice historical appreciation would
generate a significantly higher Black-Scholes value than an intrinsic value,
and particularly for large awards this differential can be very significant. In
other words, it is important to appreciate the impacts and distinctions between
the two valuation methodologies. A spouse who seeks to minimize the valuation
of options for a stock with good appreciation potential would argue for the
intrinsic value method. However, the other spouse would want to negotiate a
valuation based on Black Sholes. In valuing stock options, particularly if the
value will be used to offset other aspects of the property settlement, it is
important to calculate using both methods as this can represent a big
bargaining chip for negotiations.
E) Marital versus Non-Marital
Calculations:
Stock options that were granted and vested during the
marriage are clearly marital property. The challenge is valuing options that
were granted during the marriage, but vest after the date of divorce. A time
formula or coverture fraction is usually applied to determine the marital
share. Other than options which are provided to a new employee as incentive to
join the corporation, the formula used to establish the marital portion is
known as the Nelson formula to reference the case from which it derived. The
formula is as follows: the number of months between the date of the grant and the
date of the divorce is divided by the number of months between the date of the
grant and the date of exercisability. Then this fraction is multiplied by the
number of shares which can be exercised, and that ratio represents the number
of options which are marital property, which can either be exercised or used
for purposes of offsetting the value of other marital property.
F) Mechanics:
If the non-employee spouse wishes to exercise the stock
purchase when the option vests and hold onto the shares, and the plan does not
allow for direct transfers of the options, then (s)he would have to have
adequate cash to provide to the employee spouse to effectuate the purchase. The
shares could then be transferred to the non-employee spouse. Alternatively, the
employee spouse could exercise and sell the options simultaneously on behalf of
the non-employee spouse. However, under both scenarios, there will have to be
some remuneration to the employee spouse to account for the tax consequence
resulting from the exercise. Therefore, the employee spouse may need to
exercise more shares than (s)he will transfer to the non-employee spouse in
order to gross up the associated tax liability. If a settlement agreement makes
reference to the number of shares that the non-employee spouse may exercise
based on the non-employee’s shares of the marital portion of the stock options,
but does not make reference to how the tax ramifications of that exercise
should be treated, then such ambiguity will result in problems, potential post-divorce
litigation, and a tax nightmare. In addition to the settlement agreement
providing clarification regarding the tax consequences of exercising the stock
options on behalf of the non-employee
spouse, it should also specify that the employee spouse must provide the
non-employee spouse with all vesting schedules, statements, and exercise
options. The agreement should also put the burden on the non-employee spouse
upon vesting to send written request to the employee spouse to request action.
Stock options can represent a significant portion of a marital estate. It is
essential to understand how such options can be valued as well as to document
the rights and responsibilities associated with maintaining this asset.
G) Disclaimer:
Divorce financial planning is a fee-only process that does
not involve investment advice or securities transactions. All information
provided herein is financial and educational in nature and should not be relied
upon as legal or tax advice. You should consult with your tax advisor or attorney regarding specific tax
issues.
