Employee Stock Options And Divorce

BY

CHARLES F. VUOTTO, JR., ESQ.
With Special Thanks to
ROBERT J. CHALFIN, CPA, JD AND PAUL GAZALEH, CPA
of THE CHALFIN GROUP, INC.

2000

Preliminary Statement

          Today, more than ever, divorce attorneys must be proficient in recognizing, understanding and resolving disputes arising from the distribution of employee stock plans.  This need results from companies’ increasing reliance on option plans to compensate, reward and retain employees of all levels.  The popularity of stock option plans is evident from the vast array of corporations implementing them.[1]  For example, businesses ranging from high technology companies, to large publicly traded corporations to non-high tech closely held companies all grant stock options.  In effect, stock options are replacing typical cash based compensation packages.  Such broad-based implementation of this compensation scheme has obvious implications for asset distribution and support awards incident to divorce proceedings.

          Companies are issuing stock option plans more often and to a greater diversity of employees than ever before.  Traditionally, stock option plans were used to reward top management and “key” employees while simultaneously linking (golden handcuffing) those employees’ interests to the interests of the company and other shareholders.  An increasing number of companies, however, now consider all of their employees “key.”  As a result, the popularity of broad-based stock option plans has grown significantly since the late 1980’s.  Such plans now apply to all or a majority of employees in more than a third of large United States companies.  This more than doubles the rate in existence in 1993.  A 1997 survey of 1,100 public companies[2] found that 53% of the respondents provided options to all employees.  Further, the study reported that 51% of companies with an employment force of 500 to 999, offered options to all employees as opposed to 30% in a similar 1994 survey[3] and 31% in 1991[4].  In addition, 43% of companies with a workforce of 2,000 to 4,999 offered options to all employees  compared to 10% in 1994.  Forty-five percent of companies with 5,000 or more employees also reported offering options to all workers compared to 10% in 1994.  See Employee Stock Options Fact Sheet, (visited June 10, 1999) <http:\\www.nceo.org\library\optionfact.html).[5]

           This trend shows no significant signs of slowing; therefore, matrimonial attorneys must be ready to address the unique issues arising from the ownership and distribution of broad-based stock option plans.   This article will explain the basic nature of employee stock options, how they are valued, taxed and ultimately distributed in divorce proceedings.

What is an Employee Stock Option?

          There is no question that “stock options” are assets subject to equitable distribution.  However, to simply say that they are assets does not provide sufficient guidance to the matrimonial litigator.  We must first understand the basic nature and definition of a stock option. Basically, a “stock option” is “the right to purchase a specified number of shares of stock for a specified price at specified times, usually granted to management and key employees.”  The price at which the option is awarded is called the “grant” price; this is usually the market price at the time the options are granted.  Black’s Law Dictionary (5^th ed. 1979). See also Treas. Reg. §1.421-7(a)(1) (1978); I.R.C. §1234(a) (1998)[6]

          Generally, stock options are incentives to stimulate the efforts of key employees as well as attempts to retain such employees.

          An option holder may lose his/her right to exercise the option regardless of whether the stock option is granted for money, past services, as an incentive for future services, or for no consideration at all.  This rare occurrence results when the option holder attempts to exercise outside of the option’s terms.  This rarely becomes an issue in divorce litigation; however, it is nonetheless something to keep in mind to avoid severe economic loss to either party and/or a potential attorney malpractice claim.

          If the option (whether an NQSO or ISO) is “actively traded on an established market” the code considers the option to have a “readily ascertainable fair market value.”[7]  If there is no “readily ascertainable fair market value” at the time of the grant, the optionee recognizes income at the time of the option either: (1) becoming “substantially vested” or (2) is no longer subject to a “substantial risk of forfeiture.”[8] Any profit is a short term capital gain, taxable at ordinary income rates.[9]  The code establishes four conditions necessary for an option that is not “actively traded on an established market” to meet the “readily ascertainable fair market value” standard:  (1) the option is transferable by the optionee (2) the option is exercisable immediately in full when granted (3) there can be no condition or restriction on the option that would have a significant effect on its fair market value, and (4) the market value of the option privilege is readily ascertainable.[10]  All four conditions must be met.  Because these conditions are seldom satisfied, most non-qualified, non-statutory stock options not traded on an established market, do not have a readily ascertainable value.[11] 

Are there different kinds of stock options and how are they taxed?

          Generally, there are two basic categories of stock options:  (1) incentive stock options (commonly referred to as “ISO’s”) which are qualified or statutory options and (2) non-qualified stock options (which are commonly referred to as “NQSO’s”).  Simply put, the difference between the two types of options results from their Internal Revenue Code compliance requirements at the time of the grant.  These requirements ultimately affect how the options are taxed.  See I.R.C. §422A (b) (1998).[12] 

          An employee will not realize any taxable income upon the grant or exercise of an ISO.  Rather, tax is only owed when the stock resulting from an exercised ISO is sold.  If the employee sells the stock within two years after the option is granted and within one year after the option is exercised,  income will be realized in an amount equal to the lesser of (1) the excess of the fair market value of the shares at the date of exercise over the option price, or (2) the excess of the amount realized on the disposition over the option price.  If the individual holds the shares for two years after the grant of the ISO and one year after exercise of the ISO, the difference between the sale price and the option price will be taxed as a capital gain or a loss.  If the stock is sold after the two-year/one-year period, that gain will also be an alternative minimum tax preference item subject to the 26/28 percent tax rate.

          NQSO’s are treated differently.  The holder “employee” of a non-statutory option will recognize income at the time of the grant if the option has a “readily ascertainable fair market value.”  The individual will not realize income at the time of the grant, however, if the option is not transferable and does not have a “readily ascertainable fair market value.”  When the non-qualified stock option is exercised, the individual is taxed at ordinary income rates on the difference between the fair market value of the stock and the exercise price of the option.  When the individual sells the stock, a capital gain or loss will be incurred on the difference between the amount received for the stock and its tax basis. Typically the tax basis is equal to the fair market value at the time of the exercise of the option.  The capital gain will be either long term or short term depending on the length of the time for which the shares are held after the exercise.

          It may, therefore, be appropriate to tax effect executive stock options for purposes of equitable distribution.  Executive stock options must be exercised and sold because they have a fixed expiration date.  The resulting tax is, therefore, inevitable and should be considered when determining how assets should be distributed.  Further, there may be situations where the transfer of restricted stock options to a non-employed spouse may result in tax liability incident to a transfer pursuant to a Judgment of Divorce.[13]

How Are Stock Options Valued?

          Various methods are recognized as valuable tools in alleviating the difficulty of determining stock options’ present value.  In 1995, the accounting profession formally recognized that executive stock options have value beyond their intrinsic value.  At or about the same time, the Financial Accounting Standards Board (FASB) also stated that,  “an employee’s stock option has value when it is granted regardless of whether, ultimately (a) the employee exercises the option and purchases stock worth more than the employee pays for it or (b) the option expires worthless at the end of the option period.”  See Statement of Financial Accounting Standards No. 123, ¶75, Financial Accounting Standards Board, October 1995; see also Les Barenbaum, Ph.D., Employee Stock Options Valuation Issues.[14]  Therefore, the profession acknowledged the Black-Scholes Option Pricing Model as an appropriate method by which to calculate the value of executive stock options. Therefore, the two most popular valuation modes are the “intrinsic value” and the “Black-Scholes” methods.  See Statement of Financial Accounting Standards No. 123, ¶78, Financial Accounting Standards Board, October 1995.  See also Barenbaum supra p. 4. 

Intrinsic Value Method

          The intrinsic value method calculates the stock option’s value by determining the difference between the option exercise price and the fair market value of the stock.  For example, if you have an option to purchase stock “x” for $5, and the stock is currently trading at $27 per share, the intrinsic value of the option is $22 ($27 – $5 = $22).  This method, however, fails to consider the value of the holder’s right to purchase the stock at a later date for a predetermined price.  It also does not consider the volatility of the underlying stock as well as the incumbent advantages and disadvantages of such volatility.  In addition, the intrinsic value method fails to account for the advantages and disadvantages resulting from the option holder’s inability to receive the stock’s dividends.  Lastly, this method does not calculate or consider the difference in value between the cost of purchasing the stock and the cost of forgoing lost interest on the acquisition funds. 

Black-Scholes Method

          The Black-Scholes Method takes into account the financial and market considerations that are ignored by the intrinsic value method. The most important distinction between the two methods, therefore, is that the Black-Scholes Method accounts for market volatility.   If volatility is excluded from the calculation, options from two very different companies, with varying growth rates, may result in the same value. For example, assuming that the option prices and fair market values are the same, options from a slower growing utility company, such as PSE&G, may result in the same value as options from a faster growing computer company, such as Microsoft.  It does not require a leap of the imagination to realize that omitting market volatility from value determinations may be misleading.  The Black-Scholes Method differentiates between these  types of companies and, therefore, avoids such misperceptions, while the intrinsic method does not. 

          The Black-Scholes formula (shown below) is complex and contains many variable components.  The formula is:

  

          The explanation of these letter designations for the variables in the Black-Scholes formula are:

 

C = SN (ln(S/K))

C = theoretical call premium

S = current stock price

t  = time until option expiration

K = option stock price

r  = risk free interest rate

N = cumulative standard normal distribution

e  = exponential function

o  =  standard deviation of stock returns

ln = natural logarithm

 

          The initial part of the calculation determines the expected benefit resulting from an outright purchase of the stock.  The latter part of the calculation determines the present value of paying the exercise price in the future. The difference between the two is the fair market value of the option.

          An underlying problem with the Black-Scholes Method, however,  is that it requires assumptions regarding the volatility of the stock, future dividend rates, and lost interest.  Thus, a change in any of the underlying assumptions will affect the value of the option as calculated pursuant to this method.

          The following table provides a summary of how a change in one of the assumptions will affect the value of the stock options calculated under the Black-Scholes Method.

 

	Increase in Variable	Decrease in Variable
Stock Price	Increase	Decrease
Exercise Price	Decrease	Increase
Option Life	Increase	Decrease
Risk Free Rate	Increase	Decrease
Dividend	Decrease	Increase
Stock Volatility	Increase	Decrease

 

          A common misconception in the valuation of long-term options is that an option’s value is best represented by its intrinsic value.  Seeid.  In fact, based on the various Black-Scholes factors, stock options which are “out of the money,”  meaning that the strike price exceeds the current fair market value, are actually traded with various dollar values.  For example, a Dell Computer stock option with a strike price of $50.00 and a market value of $37.3125 as of May 24, 1999 traded for $8.75.  This is so even though the option was almost $13.00 out of the money when the option was valued.  The disparity in the value is due to investors’ optimism that a rise in the Dell shares would occur so that the shares’ worth would exceed $58.75 prior to the option’s expiration. See id

How Are Stock Options Distributed In Matrimonial Matters?

          Generally, the methods implemented to distribute stock options fall into one of two categories:

1.     Deferred Distribution Upon Exercise of Options (Constructive Trust);

2.     Present Valuation with off-set against other assets.

          (What portion of options should be granted to the non-employee spouse when the employee-spouse asserts that a portion of the options is non-marital property is an issue that often arises in either distribution method.  This issue, however, is addressed in the next section of this article.)

Deferred Distribution Method

          The Deferred Distribution Method is the most commonly implemented method for distributing options.  Moreover, this method was utilized in one of the earliest New Jersey cases dealing with stock options incident to divorce. See Callahan v. Callahan, 142 N.J. Super. 325, 328 (Ch. Div. 1976).  The Callahan court ruled that options acquired during a marriage were subject to equitable distribution even though (1) the options were potentially terminable; (2) the husband had to make an expenditure to exercise the options; and (3) the options were subject to various SEC regulations.[15]  See id. at 327-29.  In so holding, the court impressed a constructive trust on the husband, in favor of the wife, for a portion of the options.  See id. at 329.  The court reasoned that imposition of a constructive trust would result in the most equitable outcome to the parties without creating undue financial and business liabilities.  See id.  It should be noted that all of the options were granted during the course of the marriage.  See id. at 327.  Although not specifically stated, however, it appears that some or all of the options were not fully vested because they were subject to divestiture under certain circumstances.  See id. at 330.  This may be why the wife was awarded only 25% of the options at their maturation.  See id. n. 1.  (See section below regarding determining distributive shares.)

Present Valuation Method

          The Present Valuation Method is another commonly-used mode of distribution.  Under this method, the non-employed spouse must receive his or her share of the current value of the options in either cash or a cash equivalent.  This method should account for mortality discounts, interest, inflation and any applicable taxes.  The Present Valuation Method’s shortcoming, however, is that such distribution may potentially become inequitable if the employee spouse is either unable to exercise the options or the options are “worthless” (the cost of the option exceeds the fair market value) on the date they become exercisable.

          Out-of-state matrimonial courts differ on the preferred method of stock option distribution depending on the nature of the options.  For example, a different method may be implemented depending on whether the options are vested or unvested and/or transferable or salable. Transfer to the non-employee spouse, if available,  is the preferable distribution method because it effects a clean break between the parties. This method negates any need for further communication between the parties and eradicates the need to implement valuation methodologies. Transfer of stock options, however, is rarely permitted by employee stock option plans.  Therefore, some courts have devised alternative distribution methods.  One such method  allows the parties to hold the options as tenants-in-common.  Another alternative allows the non-employee spouse, upon furnishing the requisite capital, to order his or her portion of the options exercised.  This latter option is similar to the constructive trust solution devised in the Callahan decision.  The aforementioned alternatives are not an exhaustive list of distribution methods devised by courts.  In fact, trial courts are accorded and often use broad discretion in tailoring approaches to  the facts of individual cases.[16] 

          As a practice point, please note that when distributing options in kind, parties should be advised against violating insider trading rules. For example, it may be a violation if the participating spouse makes known his/her intention to exercise options to the non-participating spouse.   Another concern regarding distribution of options in kind is that they may lapse if the individual’s employment is terminated, either voluntarily or involuntarily.

Determining the non-employed spouse’s distributive share

          What happens when the employed spouse argues that some or all  of the options are unvested or were otherwise “not acquired during the marriage” and therefore not distributable to the other spouse? 

The New Jersey Approach

          New Jersey courts, when addressing stock options incident to divorce, emphasize the necessity to balance the  “need for definitiveness embodied in the date-of-complaint rule[17] with the need for flexibility inherent in equitable distribution.”  See Pascale v. Pascale, 140 N.J. 583, 612 (1995).  Whereas the majority of other state courts which have addressed this issue determine the portion of stock options subject to distribution by employing the “time-rule formula” approach (explained below), New Jersey courts have laid the groundwork in a more general fashion.  Basically, New Jersey courts hold that assets or property acquired after the termination of the marriage, but as a result of efforts expended during the marriage,  will generally be included in the marital estate and are, therefore, subject to equitable distribution.  See id. at 469.  However, New Jersey law recognizes that assets acquired after a marriage’s dissolution,  resulting solely from the earner’s post-complaint efforts, constitute the employed spouse’s separate property. See id. at 470.  The problem is telling the difference.

          Pascale v. Pascale is the seminal New Jersey case regarding stock option distributions.  In Pascale, the parties were married on June 19, 1977; a divorce complaint was filed on October 28, 1990.  See id. at 588.  In 1987, while still married, Mrs. Pascale was granted the option to purchase 5,000 shares of her new employer’s stock.  See id. at 607.  As of the trial date, Mrs. Pascale had acquired and owned 20,069 stock options, all of which were awarded by her employer between April 14, 1987 and November 15, 1991.  See id.  Seven thousand, three hundred of those options were granted subsequent to the filing of the divorce complaint.  See id. 

          The dispute arose in response to two sets of options granted on November 7, 1990, one for  4,000 shares and another consisting of 1,800 shares.  The disputed options were awarded approximately ten days after the wife filed for divorce.[18]  See id.  Mrs. Pascale argued that the 1,800 options were not subject to distribution because they were “issued in recognition of past performance.”  Id.  In addition, she asserted that the remaining 4,000 shares were also excluded from the marital estate because they were issued in anticipation of increased employment responsibilities resulting from a promotion.  See id.  Mrs. Pascale relied on her company’s transmittal letters to support her arguments.  See id.  The trial court, however, held that neither of the two blocks of options could be excluded from the marital estate. Therefore, both were subject to equitable distribution.[19]  See id. at 608.

          However, the Appellate Division found that only one of the two sets of options constituted part of the marital estate.  See id. (citingPascale v. Pascale, 274 N.J. Super. 429, 437-40 (App. Div. 1994)).  The appellate court opined that the 4,000 shares granted in recognition of the promotion were “’more appropriately . . . designed to enhance future employment efforts’ and should not have been included in the marital estate.”  Id. at 603 (citing Pascale, 274 N.J. Super. at 439).  However, the Appellate Division found that the remaining 1,800 options were granted in recognition of past employment performance and were, therefore, properly included in the marital estate notwithstanding the date of complaint rule. See id.

          In reversing the appellate court, the Supreme Court focused on N.J.S.A. 2A:34-23 and the  principle that “[p]roperty ‘clearly qualifies for distribution’ when it is ‘attributable to the expenditure of effort by either spouse’ during the marriage.”  Id. at 609 (quoting Painter v. Painter, 65 N.J. 196, 214 (1974)).  The Supreme Court’s holding made it clear that the determining factor, in stock option distribution cases is whether the assets result from the parties’ joint efforts put forth “during the marriage.”  See id.  To refute the presumption that the options result from a joint effort, the party seeking exclusion of the asset bears “’the burden of establishing such immunity [from equitable distribution] as to any particular asset.’” Id. (citing Landwehr v. Landwehr, 111 N.J. 491, 504 (1988)).

          Consequently, the Pascale court concluded that stock options granted after the marriage’s termination “but obtained as a result of efforts expended during the marriage should be subject to equitable distribution.”  Id. at 610.  The court further noted that obvious inequity [. . .] may result from inflexible applications of the date of complaint rule.  See id.[20]  The Supreme Court apparently concurred with the trial court’s determination that the wife’s promotion and compensation awards were attributable, in part, to the parties’ joint efforts during their marriage.   See id. at 610.

          How would the New Jersey Supreme Court have held if it determined that a block of options resulted from both pre and post marital efforts?  How should courts hold if the purpose for the options’ grant is unclear or indeterminable?  What should guide court’s decisions if the options are unvested and require future employment to fully vest?  These circumstances often exist; however, New Jersey’s courts have not yet developed clear standards by which to resolve such disputes.  Thus, such common problems often result in murky dilemmas for litigants and their attorneys. 

          Although New Jersey has only two reported decisions regarding stock options, to wit, Callahan and Pascale, there has been one unreported New Jersey Appellate Division Case which has also addressed the issue.   Namely, the case of Linda Klein v David Klein Docket No. A-5019-97T1 argued June 3, 1999 and decided on June 24, 1999.  In this case, the defendant husband appealed the trial court’s award of 50% of all of his stock options to the plaintiff.  The Appellate Division rejected the defendant’s arguments and affirmed the Trial Court’s decision.  The defendant had obtained a senior staff attorney position with Warner-Lambert in 1979 where he continued to be employed up to the date of the Appellate Court’s decision.  The Klein court addressed the 1992 stock option award which was made two months after the Complaint for Divorce was filed.  The Appellate Court found that the Trial Judge had “sufficient basis….to find that the grant was based upon defendant’s service provided to the company during the marriage”.  This conclusion was supported by the text of the Warner-Lambert Grant Letter, which stated that the grant “reflects your extremely valuable contributions to the success of this corporation”. (page 4,5).

          The defendant argued that the Trial Court’s award related to the options granted in 1989,1990, and 1991 (prior to the filing of the complaint for divorce) were “unmatured” because they were not exercisable by the complaint date.  The Appellate Court noted that at the complaint date, 25% of 1989 options granted, 50% of the 1990 options granted and 75% of the 1991 options granted could not be exercised. The defendant further argued that he had to remain employed at Warner-Lambert in order to exercise the options.  By the time of the trial in 1996, however, all but the last 25% of the options granted in October 1992 were exercisable, and that last 25% was exercisable by the time the judge read his decision into the record in November 1996.  The Klein Appellate Court then went on to address the most prevalent issues when distributing equitable distribution of stock options, to wit, the distribution of unvested stock options.  In support of the affirmance of the Trial Court’s decision, the Appellate Court in Klein reiterated the well established premise that “the right to receive benefits accruing to a spouse subsequent to a divorce or subject to equitable distribution if they are related to the joint efforts of the parties”.  Moore v Moore 114 NJ 147,154(1989).  The Klein Court noted that there were no reported decisions in New Jersey applying this concept to unmatured stock options, but note that the cases related to pension benefits are analogous.  (Id. pg. 6)  As many out of state courts have done, the KleinAppellate Court went on to analogize the concept of distributing unvested stock options with the concept of distributing pension benefits.

          However, as with the other New Jersey cases, it is this writer’s opinion that the court failed to adequately consider the post complaint efforts which the employed spouse was required to expend when distributing the options.  This writer agrees with the analogy to distribution of retirement benefits, but emphasizes such retirement benefits are only divided after applying an appropriate coverture fraction to assure that only the marital portion of the retirement benefit is distributed.  Although the Klein Court concluded that “there can be little doubt from the Grant Letter, the plan’s terms giving a range of possible grants. and the annual ward of a grant, that the options were intended to reward the defendant’s work for the year proceeding the grant, the fact that they were presumably subject to divestiture if the defendant did not continue to work after the complaint for divorce meant that the court did not consider a key factor in distributing these assets.  The court’s conclusion that “the fact that the benefits could not be received unless additional years of employment were completed does not make a difference in the includability of the stock options in the marital estate” (page 8) is a significant departure from the conclusion of the majority of other states in this nations that have addressed this issue.

          In essence, the defendant received no relief either by way of the distributable portion of the options subject to distribution, the valuation of those options, or his spouses entitlement therein based upon the fact that these options were not exercisable as of the date of the complaint and his continued post complaint employment was required for these options to continue to exist.  There would seem to be some inequity in this result.  It is the writer’s opinion that the coverture fraction that has been adopted by the majority of states is the most appropriate and fair method of resolving this inequity.

          To date, New Jersey has not yet adopted a bright-line rule to determine how  unvested options should be distributed.  Instead, New Jersey’s analysis, unlike other states,[21] rests almost entirely on subjective determinations.

The Out-of-State Approach

          The majority of states, like New Jersey, treat unvested stock options as property that is subject to distribution in marital dissolution proceedings.  See Garcia v. Mayer, 122 N.M. 57 (Ct. App. 1996), cited in Wendt v. Wendt, 1998 WL 161165, at *119 (Conn. Super. 1998);see also, MacAleer v. MacAleer, 725 A.2d 829 (Pa. Super. 1999)  In MacAleer, the Pennsylvania appellate court determined that stock options granted during the marriage, but not exercisable until after the date of separation, constituted marital property subject to distribution in divorce proceedings.  See id. at 831.  The court noted that benefits resulting from employment during marriage are marital because those benefits, like pension benefits were “received in lieu of additional compensation which would have” been utilized during the marriage to either acquire additional assets or raise the marital standard of living.  Id. at 832 (quoting Berrington v. Berrington, 598 A.2d 31, 34-35 (1991)).  The court’s rationale, to a large degree, parallels the rationale and holdings of a majority of other state courts.  See id. at 833.

          Many jurisdictions first consider whether the options were granted for past, present or future services.  However, most courts have learned that employee stock options are usually not granted for any one reason.  Instead, the majority of courts have realized that options are often granted for a conglomeration of reasons including compensation for past, present and future services.  As a result, when dealing with unvested options, many courts sought to develop or adopt a  structured scheme useful to determining the distributable share of such options.[22] 

“Coverture Factor” or “Time-Rule Fractions”

          As stated previously, most out-of-state courts use either a “coverture factor” or “time rule fraction” to determine how much, if any, of the unvested stock options constitute marital property.  The most prevalent time rule fraction  evolved from a formula implemented by the California Court of Appeals in In re Marriage of Hug, 154 Cal. App. 3d 780 (Cal. Ct. App. 1984).  In Hug, the trial court expressed the options that were part of the marital estate in terms of a fraction.  See id. at 782.  For example, the court stated that the numerator represented the difference in months between the spouse’s commencement of employment with the company and the date of the parties’ separation.  See id. The denominator was established by first determining the difference, in months, between commencement of employment and the date when the first option was exercisable.  See id.  This factor was then multiplied by the number of shares that could be purchased on the date that the option was first exercisable.  The remaining options were determined to be the separate property of the husband, the employed spouse. See id. at 782-83.[23]

          The husband in Hug agreed that the options were subject to division according to the time rule; however, he contended that the trial court used an erroneous formula.  See id. at 784.  He argued that the proper time rule should incorporate the date when the option was granted rather than the date that he commenced employment because the options were not granted as an incentive to accept such employment.  See id.  He further argued that each annual option was a separate and distinct option granted as compensation for services rendered during that year.  See id.  Thus, he argued that the options were his own separate property because they each accrued after the date of separation.  See id.

          The Hug court examined the various reasons why corporations confer stock options to employees and found that no single characterization could be given to employee stock option grants.  See id. at 786.  Thus, the court determined that whether they are properly characterized as compensation for past, present, or future services, or all three, is fact specific.  See id.  Therefore the trial court concluded that, given the facts of that particular case, the two-year period of employment preceding the company’s distribution of options contributed, at least in part, to the underlying reasons for the grant at issue.[24]  See id.  The appellate court held that the lower court’s determination was supported by ample evidence in the record.  See id. at 789. 

          Various versions of coverture factors have since evolved as courts addressed different factual circumstances.  A recent Connecticut case, Wendt v. Wendt, undertakes a lengthy analysis of the competing arguments and most commonly used  coverture factors.  See generallyWendt, 1998 WL 161165.

          Interestingly, the Connecticut court rejected the wife’s expert’s valuation methodologies, the Black-Scholes Method, in favor of the “intrinsic value” method.  See id. at 249.  The Wendt court noted that the “intrinsic value” methodology resulted in the wife receiving a 10% increase in distribution over the distribution granted under the Black-Scholes model.  See id.

          New York recently joined the majority of states holding that “stock option benefit plans provided by a spouse’s employer constitute marital property for the purposes of equitable distribution, where the plans come into being during the marriage but are contingent on the spouse’s continued employment with the company after the divorce.”  See DeJesus v. DeJesus, 90 N.Y.2d 643 (1997).  Therefore, New York’s highest court unanimously joined the majority of jurisdictions that use a time rule to divide such contingent resources.  The DeJesus court laid out the following four-step procedure to guide courts in dividing such options:

1.       Determine the portion of shares issued for past and future services;[25]

2.       Determine the shares related to compensation for past services to the extent that the marriage coincides with the period of the titled spouse’s employment, up until the time of the grant.  This would be the marital portion;

3.       Determine the portion granted as an incentive for future services; the marital share of that portion will be determined by a time rule; and

4.       Calculate the portion found to be marital by adding:

i.        that portion that is compensated for past services; and

ii.       that portion of the future services deemed to be marital after application of the time rule.

The sum result will then be divided between the parties using the equitable distribution criteria.  See id. at 652-53.

          This method was borrowed from Marriage of Miller, a Colorado Supreme Court case.  The DeJesus court was persuaded that the Millertype analysis best accommodated the tensions that often arise when attempting to determine how options should be distributed in lieu of unclear or competing reasons for the grant.  See id. at 651.  For example, the highest court of New York found that the Miller analysis properly distinguished between portions of stock plans acquired during the marriage versus those acquired outside of the marriage.  See id.  In addition, the court found that the Miller analysis also sufficiently differentiated between stock plans designed to compensate for past services and those designed to compensate for future services.  See id.

          However, notwithstanding the complexity of these methods, the danger of rigidity and resulting unfairness from a formalistic application of such approaches still exists.  This issue was addressed by an Oregon court in In re Powell, 934 P.2d 612 (Or. Ct. App. 1997).  Powellemphatically stated that “no one rule will produce a just and proper result in all cases and no one rule will be responsive to the many different reasons why stock options are granted.”  Id. at 615.  This reasoning echoes the earlier New Jersey Supreme Court’s rationale  in Pascale.

Can Stock Options Be Viewed As Income To The Employee For Support Purposes?

                   In general, in a divorce proceeding, stock options may be classified by courts as either an asset subject to equitable distribution or qualified as an income stream for the purpose of calculating spousal support and child support  Michael J. Mard & Jorge M. Cestero, Stock Options in Divorce: Assets or Income?, 74 Fla. Bar J. 62 (2000).  The question of which classification is most appropriate is one which courts are grappling with at present with increasing frequency as stock options become a standard means of reward and incentive for many executives in the United States.  Id. 

                   The difficulty in reaching a judicial determination of the unexercised stock option as a property asset versus an income asset lies in the fundamentally difficult nature of valuing stock options.  First, “at the time of its grant, the stock option does not have a readily ascertainable value.”  Jack E. Karns & Jerry G. Hunt, Should Unexercised Stock Options Be Considered “Gross Income” Under State Law For Purposes Of Calculating Monthly Child Support Payments?, 33 Creighton L. Rev. 235 (2000).  The most common valuation methodologies were set forth in the preceding sections of this article.  Second, stock options have a dual nature.  Maard, supra at 62.  As previously noted, options have some characteristics of a property asset because the options represent the right to purchase an ownership interest in the underlying corporation’s stock.  Id.  This ownership interest under certain circumstances is alienable.  Id.  On the other hand, options also have characteristics of income because by definition as well as by intent, options permit the owner to earn the appreciation in value of the stock before its actual purchase.  Id.  Also, in most instances, options are paid out to employees as a form of compensation.  Id.  The options may take the form of deferred compensation for past services, current compensation for present services, or compensation advanced for future services.  Id. citing Seither v. Seither, 24 Fla. Law Weekly D2816 (Fla.2d DCA.1999). 

                   Nevertheless, in dissolution proceedings today courts must answer the question of whether stock options are “gross income” subject to income tax, thereby included in alimony and child support calculations versus “personal property” subject to capital gains treatment and equitable distribution  Strong arguments exist for both types of classifications.  Precedent favors the property classification.  Yet, a new trend has begun to emerge in this country whereby some courts are classifying stock options as income for support purposes.  The following will synopsize the classification trend among the courts in the United States broken down by circuit

                   State courts in the First Circuit continue to abide by the more common approach of treating unvested stock options as property subject to division.  No cases have been published construing stock options as income for calculating support  State appellate courts in the Second Circuit have likewise held that stock options, both exercisable and nonexercisable, owned on the date of dissolution were property subject to distribution.  Taylor v. Taylor, 57 Conn. App. 528 (2000); Bornemann v. Bornemann, 245 Conn. 508 (1998).  Interestingly, however, on the trial level, courts have considered as income the funds received through the redemption of stock options awarded at the time of dissolution for purposes of assessing whether there had been a substantial change in circumstances in a post judgement application to modify alimony and child support.  Denley v. Denley, 38 Conn. App. 349 (1995).  On appeal however, the plaintiff argued that the funds received from the exercise of stock options was simply a conversion of an asset.  Id.  The appellate court agreed.  Id.  The Denley Court explained that “the mere exchange of an asset awarded as property in a dissolution decree, for cash, the liquid form of the asset, does not transform the property into income.”  Id.

                   In the Third Circuit however, some state supreme courts have held that profits realized from the exercise of the employee stock options, unexercised at the time of dissolution, but taxed as ordinary income when exercised, were properly treated as income when calculating a post judgment modification of a child support obligation.  Kenton v. Kenton, 571 A.2d 778 (1990).  The Supreme Court of Delaware analogized the profits realized from the exercise of stock options to a “bonus” properly included in a parent’s net income for support purposes.  Id.  Additionally, the Superior Court of New Jersey, Appellate Division held that employee payments to deferred annuity plans and other similar types of deferred compensation should be included in determining a party’s adjusted gross taxable income for purposes of calculating child support.  Schwartz v. Schwartz, 328 N.J. Super. 275 (App. Div. 2000) citing Pressler, Current N.J. Court Rules, comment on Appendix IX-B at 2108; Connell v. Connell, 313 N.J. Super. 426, 433-43 (App. Div. 1998). 

                   State court cases in the Fourth Circuit are following the more traditional approach holding that both unvested and vested options whether exercised or not are property subject to equitable distribution.  Chimes v. Chimes, 131 Md. App. 271 (2000).  These courts treat stock options similar to “a pension that has not yet vested.”  Moreover, legislatively, deferred compensation plans which may include stock option plans have been codified as requiring treatment as a pension or retirement benefit subjecting same to division as marital property.  Dietz v. Deitz, 17 Va. App. 203, 213-14 (1993).

                   No state court cases in the Fifth Circuit have been reported wherein stock options were treated as income for purposes of calculating child support or spousal support.  In Brewer v. Brewer, the court articulated the rule of law in Texas with regard to the treatment of stock options in dissolution matters.  Brewer v. Brewer, 20000 Tex. App. Lexis 3546 (2000).  The Brewer Court quoting Bodin v. Bodin, explained that “Unvested stock options [are] a community asset subject to consideration along with other property in the division of the community estate. “ Id. quoting Bodin v. Bodin, 955 S.W.. App. 1997). 

                   The Sixth Circuit is making legal headlines however, due to the case of Murray v. Murray, 128 Ohio App. 3d 662 (1999).  TheMurray case is thought to be the first case in the United States deliberately treating an executive’s unexercised stock options as income for child support purposes.  Debra Baker, Stock Options Declared Income to be Factored into Child Support Calculations, 85 A.B.A.J. 32 (Oct. 1999). In the Murray case, the wife moved to modify child support on the ground that her ex-spouse’s income had increase, in part from the increase in value of his stock options.  Id. citing Murray v. Murray, 128 Ohio App. 3d 662 (1999).   The husband argued that the appreciation in value of his options should not be considered because it was nonrecurring income.  Id.  The court held that where employees have complete discretion to exercise the options, the appreciation in stock value should be included as gross income even if the employee chooses not to exercise the options in each year.  Id. 

                   The Murray Court rejected the argument that the appreciation was non-recurring because the employee can exercise the option on an annual basis.  Id. The ABA Family Law Section’s position is that this decision extends the theory that executives may not reduce child support payments using business decisions as a shield or by refusing to exercise stock options.  Id.  The Murray Court reasoned that since the employee had complete discretion to exercise the options, “the option then becomes an investment choice, and its value may be imputed as part of appellant’s “gross income”.” Murray v. Murray, 128 Ohio App. 3d 662 (1999) citing Sizemore v. Sizemore, 1994 Ohio App. Lexis 4596 (Oct. 14, 1994).  The court in Murray continued to explain, “If we were to hold that executive stock options were not to be included in “gross income” …, an employee receiving such options would be able to shield a significant portion of his income from the court, and deprive his children of the standard of living they would otherwise enjoy. This would be in direct contradiction with the very purpose of the child support statute, the child’s best interest.  Murray v. Murray, 128 Ohio App. 3d 662, 669 (1999)  Thus, parents in the state of Ohio, and perhaps other states before long, may not shelter income from their children, intentionally or unintentionally, by postponing the exercise of stock options until the children are grown. See Id.  It should be noted however, that some legal scholars believe the result in Murray is wrong. Jack E. Karns & Jerry G. Hunt, Should Unexercised Stock Options Be Considered “Gross Income” Under State Law For Purposes of Calculating Monthly Child Support Payments?, 33 Creighton L. Rev. 235 (Feb. 2000).

                   At present, however, the trend in the Sixth Circuit is to consider the value of stock options as income for support purposes.  In fact, in Tennessee, in Stacey v. Stacey, 1999 Tenn. App. Lexis 668, the court held that stock options represented potential income and the value of the options should have been treated as income and factored into the original support obligation.  Id. The Stacey Court reasoned “It is clear that Husband received a substantial increase in the amount of his disposable income as a result of the [eventual] exercise of his stock options, and there is nothing in the record to suggest that he will not continue to receive this in the future.” Id.  Thus, this circuit leads the movement in the options as income trend.

                   With respect to state court cases in the Seventh Circuit, no cases construing stock options as income have been reported. The court in Hahn v. Hahn, 655 N.E.2d 566 (1995) explained the posture of the Indiana courts. Indiana construes “…[O]nly those stock options granted to an employee by his or her employer which are exercisable upon the date of dissolution or separation which cannot be forfeited upon termination of employment as marital property.” Hahn v. Hahn, 655 N.E.2d 566 (1995)

                   Likewise, in the Eighth Circuit, the Supreme Court of Nebraska recently held that stock options are a form of deferred compensation, vested or unvested, which constitute property subject to distribution in a dissolution matter if determined to be marital. Michael J. Mard & Jorge M. Cestero, Stock Options in Divorce: Assets or Income?, 74 Fla. Bar J. 62 (2000) citing Davidson v. Davidson, 578 N.W.2d 848 (1998).

                   On the other hand, the state courts in the Ninth Circuit are following the new trend.  California courts have made clear that spousal support and child support obligations should be based in part on income from the exercise of future stock options.  Kerr v. Kerr, 77 Cal. App.4^th 87 (1999). “In fashioning an order for additional spousal support, based on compensation from the exercise of future stock options, the court properly intended to address the disparity in the parties’ present financial positions. contrary to Richard’s argument, Deedee will not be receiving a portion of his separate property if he exercises a stock option. Rather, any income Richard receives upon exercising an option is properly considered for purposes of setting [spousal] support. Id. at 94.  “This additional income is part of his overall employment compensation and must be used to calculate child support.” Id. at 96 citing In re Marriage of Ostler & Smith, 223 Cal. App. 3d 33 (1990). Thus, courts are making clear that as stock options become a more common form of compensation so too must support awards encompass a wide variety of income streams.

                   Similarly, recent state court cases in the Tenth Circuit have held that the proceeds from a non-custodial parent’s exercise of his/her options constitutes income for purposes of determining child support.  See In re Marriage Campbell, 905 P.2d 19, 20 (Colo. Ct. App. 1995). The Campbell Court explained however, that “for purposes of child support, the father’s income, as derived from the exercise of the stock options, is limited to the difference between his purchase price of the optioned stock and the price at which he then sold it.”  Id.  Also, in the case of In re Marriage of Zisch, 967 P.2d 1999 (Colo. app. 1998), the court followed Campbell, and held that when presented with a motion to modify child support, a court “should initially include the amount of the gain as a component of the recipient’s gross income for the year in which the gain was received.” In re Marriage of Zisch, 967 P.2d 1999 (Colo. app. 1998). 

                   Moreover, a recent state court case in the Eleventh Circuit held that it was not error for the trial court to treat the husband’s stock options as income for both alimony and child support purposes.  Seither v. Seither, 1999 Fla. App. Lexis 16816 (Dec. 15, 1999).  That same court earlier suggested that stock options can be considered as income for alimony purposes.  Id. citing Milo v. Milo, 718 So. 2d 343 (Fla.2d DCA 1998). 

          Whether a court will consider stock options awarded to an employed spouse as income for purposes of fixing of support should be viewed as a function of regularity of past awards and confidence in expected future awards.  For example, a spouse who has been employed by a company for 15 years and has only received one award of stock options, should not have those options included in his pool of income upon which support should be fixed.  However, another spouse who has been employed for a similar period of time and routinely, year after year, received option awards, can likely expect to receive future awards, and therefore, expect same to be included in is available pool of income for purposes of fixing support.  In such an analysis it would be critical to determine how the parties treated prior option awards when the vested.  Did they exercise the options, sell the stock and utilize the funds to pay ongoing lifestyle expenditures or did they keep the options, stock or proceeds thereof for investment purposes?  In other words, it is necessary to determine what funds the parties actually relied upon in maintaining their lifestyle.  However, remember that even “savings” is a component of lifestyle.

          In short, opinions analyzing the treatment of stock options recognize that the circumstances under which options are granted and the particular nature of the options themselves may vary so widely that no single formula or set of factors can effectively deal with them under all circumstances. Seither v. Seither, 1999 Fla. App. Lexis 16816 (Dec. 15, 1999). See DeJesus, 665 N.Y.S.2d 36; In re Marriage of Hug, 154 Cal. App. 3d 780.  Nevertheless, a number of decisions have emerged from around the United States with interesting, yet inconsistent results. Thus, over the next decade, as family law litigation focuses more on the treatment of stock options so too will the courts focus on achieving a more evenhanded approach that aims to eliminate manipulation of the system, intentional or otherwise.

CONCLUSION

 

          There is unquestionably a growing trend among the courts of this nation to subject unvested or non-exercisable stock options granted during a marriage to distribution.  Further, options are also being viewed as income for purposes of fixing support obligation.  As this trend continues, it is critical that matrimonial attorneys become familiar with these unique types of assets and tailor their discovery demands accordingly.

          The key factor in determining how such assets should be distributed focuses on an inquiry as to the purpose for which the options were granted, i.e., whether the options were granted for past, present or future performance. 

          Since an accepted method of dividing unvested options is a form of coverture or time rule formula, matrimonial practitioners must be aware of the various forms of such fractions and the factors that can modify the fraction.  Such factors include, but certainly are not limited to, the following:  (1) when the option was granted, (2) whether the option was granted for past or future performance (if “past” how far back), (3) whether the option was granted in lieu of other compensation, (4) whether the option was a qualified incentive stock option or non-qualified stock option, (5) the options’ expiration date, (6) the tax effect of the grant of the option, (7) the tax effect of exercising the option, (8) whether or not the option has a “readily ascertainable fair market value,” (9) whether or not the option is transferable, (10) whether or not the option is restricted property, (11) the extent to which the option is subject to risk of forfeiture, and (12) any other factors that the parties or court may deem fair and equitable considerations.

          The majority of employee stock options are non-transferable and cannot be secured; therefore, matrimonial attorneys should specifically tailor their language when drafting agreements concerning such assets.  These agreements should include: (1) a list of all options granted and an explicit description of which options are marital and which are not, (2) if a Deferred Distribution Method is employed, a description of whether and under what terms the non-owner can compel the owner to sell options after they vest, (3) provisions for payment of the “strike price” by the non-employed spouse and taxes resulting from the exercise of the options, (4) a description of how and when distribution is to be made to the non-owner spouse, and (5) precise notification and document exchange provisions.  See Barenbaum supra p. 4.

          The matrimonial attorney involved in a case concerning stock options, especially when representing the non-employed spouse, should be sure to obtain the following information and documents:  (1) a copy of the stock option plan, (2) copies of any correspondence or internal memoranda  issued by the company at the time of the grant of any stock options, (3) a schedule of granted options during the employee’s period with the company, (4) the date of each option granted, (5) the number of options granted at each date, (5) the exercise price of options granted at each date, (6) the expiration date of each set of options granted, (7) the date of vesting for each set of options granted, (8) the date and number of options exercised, (9) all short term or long term employee incentive plans covering the employed spouse, (10) all Employment Agreements between the employed spouse and his or her employer, (11) all company plans, handbooks and option award letters related to stock options granted, (12) copies of the firm’s 10K and 8K for the entire period that the employed spouse is with the company, (13) dates of promotions and positions held by the employee, (14) a brief job description of each position, (15) the salary history of the employee which indicates all forms of compensation, (16) the grant date of exercised options, and (17) copies of any corporate minutes or proxy statements referencing the award of options.  These documents provide the core information from which option values can be calculated and agreements intelligently reached concerning their distribution.  See Barenbaum supra p. 4.

          As we proceed in the 21^st Century, it is clear that matrimonial attorneys will need to become as knowledgeable as possible regarding this unique kind of asset.  Hopefully, this article has given some insight into the complexities involved when dealing with Employee Stock Options and Divorce.