Vol. 35, No. 2, Summer 2001
Difficult Valuation Issues Symposium
J. Thomas Oldham, Introduction to Difficult Valuation Issues Symposium, 35 FAM. L.Q. 231 (Summer 2001).
This issue has been organized with the goal of soliciting articles from practitioners and scholars who could help family lawyers address difficult valuation problems. Valuation problems abound at divorce, but important valuation issues can arise relating to: (1) business valuations; (2) calculating the marital portion of stock options that are not exercisable at divorce; and (3) calculating the marital claim to pensions. The articles in this issue address these problems.
Marvin Snyder, Challenge in Valuing Pension Plans, 35 FAM. L.Q. 000 (Summer 2001).
This article presents examples that serve to illustrate some of the complexities of defined contribution plan valuations when attempting to ascertain a value of a marital asset. At first thought, it would seem that in a plan with an individual account for the employee it would be easy to see what the account value is. That is not quite the case, and when consideration is given to loans, hardship withdrawals, before and after-tax employee contributions, investment choices, and the timing of the contributions, it is seen that it is not easy at all.
Diana Richmond, The Challenges of Stock Options, 35 FAM. L.Q. 000 (Summer 2001).
Stock options, those fast rockets to fortune, have a downward trajectory as well. How we address these complex assets in the financial realities of 2001 may be different from what we were doing in the heady times between 1998 and early 2000. Value fluctuations are just one of the challenges of stock options: other challenges are presented by their character depending on when they were earned, vesting and repricing, limitations of transferability, taxation, manipulability and availability for support. This article will take a difficult hypothetical case, analyze it from a California perspective, compare that perspective to approaches in other states and address each of the components that present a challenge.
David S. Rosettenstein, Exploring the Use of the Time Rule in the Distribution of Stock Options on Divorce, 35 FAM. L.Q. 000 (Summer 2001).
The article commences with a brief description of the roots of the time rule in the law regulating the distribution of pensions on divorce. Then, the basic model, as applied to stock options, is described. Thereafter, the article examines the relationship between the various elements of time and the value of the options themselves and how this relationship may be used to achieve a de facto variation of the outcome suggested by the time rule. Adjustments to the time rule formula to take account of pre-grant contributions of the employee and of the marriage towards earning the options is the next topic to be considered. The article then deals with some of the issues arising from complex grant structures such as the issuing of multiple flights of options or grants embodying staggered vesting dates. Next to be tackled are a variety of post-grant concerns such as changing the point at which the options vest due to the replacement and re-pricing practices of the employer and as a consequence of acceleration and reloading. Finally, some demands of equity restructuring are considered.
Patrice Leigh Ferguson & John E. Camp, Valuation Basics and Beyond: Tackling Areas of Controversy, 35 FAM. L.Q. 000 (Summer 2001).
Many have written on the topic of business valuation. The purpose of this article is to provide an overview of the legal aspects of business valuation and an understanding of valuation foundation to assist the attorney in preparing the divorce case in which valuation issues are a part. In addition, the article addresses common errors in valuation work, Daubert considerations related to the valuation expert, and topics of controversy among experts and the attorneys who employ them.
Randall B. Wilhite, The Effect of Goodwill in Determining the Value of a Business in a Divorce, 35 FAM. L.Q. 000 (Summer 2001).
The real world of investing in publicly traded stocks is replete with examples of how executives, managers, prognosticators, investors, and company analysts, despite having the best possible assembly of data, are unable to accurately predict even the company's next quarter's earnings-much less something that might occur over the next succeeding set of years. In a litigation context, business valuation (especially the subjective components, like goodwill) becomes even harder. In a divorce case, the difficulty again multiplies. Preparing a valuation with the hypothetical assumptions required by state case law further complicates the process. Further, at times, the truculence kindred to the divorce itself, aptly called "perverse incentives" by one commentator, could adversely influence a spouse's working actions. "Perverse incentives" may cause an ex-spouse to wish to disadvantage the other ex-spouse even if, in the process, he or she too will suffer harm." The appraiser, in such an instance, must often perform more tests and even look at underlying source data to ascertain whether these unusual behaviors are unfairly impacting the valuation process, especially the often very subjective component called "goodwill." Difficult to value as it is, goodwill is something, nonetheless, that must be valued. For to overlook a potentially very significant marital property asset would mean to ignore the emerging definitions of property that clearly include intangible assets.