Wealthy couple - divorce valuation issues

This articles addresses valuations issues in large complex divorce. As such cases typically involve private business assets the article is equally applicable to any form of private business valuation. (The author is 

Robert E. Kleenan of On Pointe Financial Valuation in Colorado.)

...The large asset marital dissolution case presents a number of important valuation issues that may or may not exist in the smaller case. Because of these issues, the attorney needs to have a better understanding of these valuation issues, and must be comfortable that the valuation professional has the experience and expertise to fully develop the issues and to communicate these complex issues to the Court.

I am defining the large asset case as one that includes closely held business interests in excess of $2,000,000 in fair market value. The problem with this definition is that rarely is the closely held business interests shown in the personal financial statement with “fair market value”, but rather have some sort of historic valuation number. Simply put, this is true because individuals that have asset values of this magnitude do not need to provide a “fair market value” for any purposes. These individuals are wealthy!

Where the parties’ wealth is in publicly traded securities, or other similar assets, the valuation issues may be limited. However, the attorney should never lose sight of the fact that even thought the entity is publicly traded; the ownership interests (including options, etc.) of the parties may have a different value that the value shown in the daily trading information of the underlying stock.

In this article, we will focus on several of the key issues that tend to be found in large asset cases. These issues include:

• The complexity of the financial structure of the entities.
• Valuation methodologies to be used.
• Appropriate application of discounts and/or premiums.
• Key person issues.
• Is there a standard of value issue?

Do More Commas in the Value Equate to More Problems in the Valuation?

On the surface, the short answer is NO! Larger cases usually involve a more sophisticated operating entity. Financial information is usually more complete, and the company may have executives that are not part of the family dispute. Industry data, and guideline company information is usually better, and more easily compared to the subject company’s data. However, that being said, there are many issues in the larger valuation that can lead to problems for both the valuation professional as well as the attorney managing the case.From a practical view, the larger case needs a more sophisticated valuation expert. Rarely are the so called “formula approaches” appropriate to the larger valuation. Although we have better financial information that information is usually much more sophisticated and needs greater analysis to fully understand the operations of the entity. There may be more “perks” or other benefits available to the business owner that are not available in the smaller company. Larger business interests are more subject to the future growth and operations of the entity. The need for capital to grow these entities must be identified and taken into consideration in determining the current “fair market value” to the holder of the security.

The larger marital dissolution also requires greater involvement in the valuation process by the attorney. Because the issues are more complex, there will be issues relating to discovery that are out or the norm. Additionally, because the valuation will be more complex, it will be necessary for the attorney to become much more familiar with the valuation experts methodologies.

The following are some of the issues that must be addressed when dealing with the larger valuation matter.

The Complexity of the Financial Structure of the Business may require different approaches to the valuation. – It is not uncommon in larger businesses to find multiple classes of stock (common and preferred) and in some cases, so called phantom stock” issues for non-family, key executives in the organization. The business may not be solely owned by the parties to the divorce, other non-parties may own substantial blocks of stock. Where multiple classes of stock exist, not only must the business be valued, but also each of the classes of stock must be separately valued.

The divorcing parties might not own controlling interest in the entity, with non-family owners involved, and detailed financial information may not be readily available. –This is not an uncommon issue in large asset dissolutions. Where financial data is not available for the operating entity, the valuation professional may have to use a valuation methodology that values the minority shares without performing a valuation of the operating entity. Where the operating entity is distributing economic benefits to the shareholder, this is easier than when the operating entity is not distributing, or is retaining significant economic benefits at the corporate level.

The entity may be closely held by a family unit, but the divorcing party may be a minority owner – This can raise interesting discovery issues. Can the divorcing party gain access to the financial information? Has the divorcing party in the past received this same or similar information? The valuation professional operating under this scenario will need to provide some addition investigative services to be certain that the information being used in the valuation is appropriate regarding historical data.

The valuation methodology will usually be fairly sophisticated and require greater analysis. – It should be obvious, but the Excess Earnings Method is not normally an appropriate method for valuing a larger company. As described by the IRS, the excess earnings method is a method of last resort, used only when no better methodology is available. On large cases, I cannot imagine a matter where no better methodology would be available, and hence Excess Earnings would be appropriate.

Valuation Methodologies in the Large Case

Normally, large case valuations are driven by one or more of the following methodologies.  Each one of these methods will be discussed briefly.

Discounted Future Cash Flow – This is the theoretically best method of valuing an entity. The difficulty of this method is having the company prepare operating projections that truly reflect the expected future economic benefits available to the appropriate shareholder. If the entity being valued is expected to have high growth, or inconsistent earnings, this method is one of the better indicators of the actual value of the entity. However, where reasonable projections are available, the valuation professional should consider using this method. Where the entity is a sophisticated company, the valuation professional needs to measure prior projections with the actual operating results of the entity to determine the ability of management to accurately project future benefits. This is a key part ofthe DCF methodology. It is imperative that the valuation professional take into consideration the degree of accuracy and precision which management has displayed relative to providing information regarding future expected cash flows. The DCF method is only as good as the underlying inputs. It is critical that the forecast be believable and reflects both the historical as well as the future of the business.

Caveat – Many jurisdictions do not allow for the DCF method to be used because they feel that the future efforts of the divorcing party are no part of the current value.

Capitalization of Earnings – This method should be considered on most valuations. The only caveat regarding this methodology is that “the historical benefits must be a proxy for the expected future benefits.” Where historical benefits are not a proxy for the expected future benefits, this method will not provide a reliable indicator of the value of the holdings. If the company being valued is not mature and providing stable earnings, the Cap of Earnings method may not capture the real value of the entity.

Guideline Company Method – Where the company being valued is large and in an industry that has meaningful information available, the valuation professional certainly should consider the use of this methodology. However, when using the guideline methodology, the valuation professional must determine the impact of the “beta” and other company specific factors as they relate to the company being valued.

Discounts and/or Premiums: Real or Imaginary?

One of my pet peeves when it comes to the application of discounts or premiums to a valuation conclusion is that after 20 pages of analysis of the financial issues surrounding the entity, discussions of the economy and the future, the valuation professional reduces the value of the business from 30% - 50% by applying a single paragraph that states that the valuator believes a discount for marketability and minority should be applied.

Before we can begin a meaningful dialogue regarding whether discounts or premiums are or not appropriate when valuing a business, we need to first discuss and understand the concept of “levels of value”. Generally, there are four recognized “levels of value”. These are: 
Synergistic or Strategic Value – this is a value that is not normally part of a “fair market value analysis, because by definition, this value is specific to a buyer, and therefore is outside the accepted definition of fair market value. This is usually considered to be the highest value of an entity.

Control Value – as the name implies, this is the value of a 100% ownership block of stock in the entity. The block does not have to be held by one individual, but the assumption is that the block can and will be traded as a single unit.

Minority / Marketable Value – this is the value of a minority (less than 50.1%) block of stock. This level of value assumes that the block of stock is freely traded as if it were publicly traded stock.

Minority / Non-Marketable – this is the value of a minority block of stock that cannot readily be traded. In most large asset valuations, this is the type of stock that we are valuing.

The “level of value” concept, simply put, is that certain valuation methodologies provide an indication of value at a stated entry level. Since certain methods assume a stated level of value, our application of discounts and/or premiums will always be driven by the entry level of value indicated by the methodology. (i.e. if we use a methodology that results in a minority / marketable level of value, it would be inappropriate to take a minority discount from that level of value).

One of the most common mistakes found in any valuation is the use of a valuation methodology that assumes a certain “level of value”, and then misapplying a  discount or premium because the “level of value” already implicitly contains that assumption. 

For most situations, there are two potential discounts/premiums that are expected.

Minority / Control Issues – It is a well established business valuation principal that a minority interest in an entity is worth less than a controlling interest in that same entity. Control can offer the interest holder greater access to the success of the entity. The question really becomes, what is minority and what is control? Clearly a 100% ownership interest in the equity of an entity is absolute control. However, there are many levels of effective control. An individual that owns a large enough block of stock to effectuate liquidation or other corporate actions based on state law may have a large element of control. In some instances, 50% + 1 share might be enough to have effective control of the organization.

In larger matters, it is not uncommon to have multiple classes of stock. These various classes of stock may have significantly different voting rights, and the “control” of the entity might not have any relationship to the number of shares owned, but rather by the number of votes that are controlled by the stock interest being reviewed.

Finally, the valuator must look at the effective control of the entity. There may be indications of control of voting blocks less than 50%. Situations could include a large minority block, with the remaining shares held in very small blocks by a large number of individuals. In that case, it may only be necessary for the large block holder to get one or two individuals to vote with the large block in order to obtain control.

The Minority Discount is NOT normally 35%. This has become a self-fulfilling prophecy. Every time 35% is used, it just supports the erroneous thought that 35% is the average. The Minority discount should be carefully reviewed by the valuation expert to reflect the reality of the marketplace. The size of the block being valued will impact the application of the minority discount. In short, a 1% block normally has a greater minority discount than a 40% block. The valuation report should clearly discuss the factors that support the discount taken in the valuation.

The Swing Vote Issue

In some instances, there may be a minority block that has greater value than the same percentage ownership in another entity. For instance, let us assume that there are three shareholders in an entity. 2 of the shareholders  each own 49%, and the 3rd shareholder owns the remaining 2%. If the two 49% holders are friendly and in agreement as to how the company is to be run, and how the benefits of the company are distributed, the 2% ownership interest would probably carry a very large minority discount. However, if the two 49% holders are largely in disagreement, the value of the 2% block increases significantly because  the addition of that 2% block by either of the 49% owners gives that owner control.  These issues need to be reviewed where we are valuing a small minority interest.

Marketability Discounts

Some commentators have opined that a 100% interest in  an entity would not be subject to any marketability discount, however most of the  business valuation community does not agree with that position. The Marketability  discount is nothing more than recognition of the present value of money. It is based  on the premise that if we own shares in a publicly traded entity, we can offer the  shares for sale today, and have our cash within 5 business days. As anyone who has  ever worked with a client to sell an interest in a closely held business, there clearly is  a time period between the time the business owner puts the ownership interest up  for sale, and the time that the business owner receives the cash proceeds from that  sale. The Marketablity discount needs to identify and quantify this time value of the  proceeds. Clearly, the smaller the block of stock being offered for sale, the longer  that the potential period of finding a buyer, consummating the sale, and receiving  the proceeds may be.

The issue of buy-sell agreements and other agreements needs to be addressed at  the same time that the Marketability discount is determined. Buy / Sell agreements  do not necessarily negate a marketability discount. Unless the holder of the security  has a “put” right (and the company has the where with all to purchase), the Buy /Sell agreement has little value relative to the marketability discount. Rights of first refusal to purchase the stock also have an impact on the marketability  of the security. Most commentators will tell you that a right of first refusal has a chilling impact on the marketability of the security. As we deal with larger entities,  potential buyers do not want to become involved in the due diligence process where  the entity has a right of first refusal.

Key Person Issues

We have all heard the statement “I am the business, without me, there would be no business”. While this may be true in very small, service based businesses, as the business  gets larger, this issue becomes less important. Yet at the same time, even in very large  businesses, an owner may have a very material impact on the business. This is a fact and  circumstances based decision. It is incumbent on the valuation professional to completely  explore the impact of the business owner on the business, and the ability of the business to  replace that owner / executive.

Most business valuation professionals believe that the impact of a key person should not be  addressed through the use of a separate discount, but should be addressed in the  capitalization rate through the specific company risk factors. It is important that you as the  attorney understand how the impact of a key person is addressed in the valuation, and that  you are comfortable with the analysis of that impact.

Compensation Issues

This issue goes hand in hand with key person issues. We all have seen the valuation report  where the compensation of the owner/spouse has been adjusted for purposes of  determining the “fair market value” of the entity. Then subsequently, for purposes of  determining maintenance and/or child support, the actual salary of the individual is used.  This clearly is a case of double dipping. In the large case, this can be a significant issue. At  the same time, we look at what corporate executives in large publicly traded entities are  earning today, and we need to ask if the compensation of the equity owner is appropriate in  light of compensation of that same person in another entity. This is not a simple issue.

In the larger case, compensation is usually a major part of the business valuation, and the  inappropriate analysis of this issue can result in millions of dollars of value being created or  destroyed. We have all seen cases where the compensation of the equity holders is  reasonable in light of the duties performed relative to other individuals holding similar  positions in publicly traded entities. Yet at the same time, there are equity holders that take large amounts of compensation in lieu of dividends in the entity. The equity holder  may not be providing any meaningful services to the entity.

Compensation issues are a significant item in the large case. These issues need to be  carefully reviewed not only by the business valuation professional, but also need to be  addressed with the attorney and the client.

Source Robert E. Kleenan

OnPointe Financial Valuation

Group, LLC.

Double-dipping in Divorce Valuations

MARCH 29, 2012 BY ROBERT J. RIVERS, JR., ESQUIRE

Among the issues frequently considered in divorce cases is the value to be assigned to a spouse’s business interest for asset division purposes pursuant to M.G.L. c. 208, §34. While business valuation experts often value such interests for asset division purposes, the “double dipping” concept that necessarily flows from such valuation methodologies can sometimes create inequities when addressing the separate yet interrelated issues of alimony and child support. The concept of “double-dipping” is not an insignificant issue to be addressed by the Court; rather, avoidance of the potential inequities resulting from the “double dip” can significantly alter the value of a spouse’s business interest and can lead to dramatically different results.

The concept of “double-dipping” refers to the double counting of a marital asset, once in the property division and again in the support award. This theory is premised upon the fact that the same cash flows capitalized to determine the present overall value of a spouse’s business (an asset subject to equitable distribution pursuant to M.G.L. c. 208, §34) are also considered a component of that spouse’s total income for support calculation purposes. More specifically in the context of divorce proceedings, where the Court uses a business owner’s “excess earnings” to value the business, and also fixes support based upon that spouse’s total income (inclusive of the “excess earnings” used to value the business), a “double-dip” can occur. In order to fully understand the “double-dip” issue, an understanding of basic business valuation theory and methodology is required.

It is basic valuation theory that the value of a business is equal to the present worth of the future benefits of ownership. Fishman, Pratt, Griffith, Wilson, et. al., Guide to Business Valuations, Vol. 1, page 2-4 (PPC Publishers, February, 1999). This statement is a fundamental principle of business valuation. This is bolstered by the fact that, “a rational buyer normally will invest in a company only if the present value of the expected benefits of ownership are at least equal to the purchase price. Likewise, a rational seller normally will not sell if the present value of those expected benefits is more than the selling price. Thus, a sale generally will occur only at an amount equal to the benefits of ownership.”  Id.

This fundamental theory of business valuation is sometimes misinterpreted by Courts due to the misconception that business valuation is based upon an averaging of past income, rather than a projection as to what the future income will be based upon a review of the historical earnings of the company. However, whether one is applying a “capitalization of earnings” valuation methodology or an “excess earnings” valuation methodology, the earnings to be capitalized are indicative of the beginning point of future earnings. A future earnings growth rate is then subtracted from a discount rate to yield a capitalization rate. Thus, the role of past earnings is simply to provide an indication as to projected future earnings. Accordingly, the result of a business valuation is the present value of future, not past, income.  See Vuotto and Steirman, Double Trouble, New Jersey Divorce Article (www.vuotto.com/double-trouble.htm).

When valuing a business using either the capitalization of earnings method or an excess earnings method, the role of the business valuation expert is to determine the value of two separate components of value, namely “tangible” and “intangible” assets. While tangible assets, such as equipment, inventory, and accounts receivable, are easily identifiable, intangible assets are much more subtle.  Among the principal intangible assets that are analyzed in the context of business valuation is business “goodwill.”  The term “goodwill” is commonly defined as the “expectation of continued public patronage.”  Miod, The Double-Dip in Valuing Goodwill in Divorce, Miod & Co. LLP (1999). This definition leads to the logical conclusion that business “goodwill” is essentially the ability of an owner to enjoy future benefits from the business. See Pratt, Reilly & Schweihs, Valuing Small Businesses and Professional Practices, 2d. ed., p. 410-411 (Irwin Professional Publishing 1993) (among the biggest factors contributing to goodwill value in a professional practice is the projected level of economic earnings).

As has been noted, “[i]n valuation theory, these [“goodwill”] benefits an owner receives are represented by the net cash flows the owner receives from operating the business through dividends, withdrawals and/or salary and benefits beyond a normal level.” Fishman, Pratt, Griffith, Wilson, et. al., Guide to Business Valuations, Vol. 1, page 2-5 (PPC Publishers, February, 1999). It is the process of converting these future benefits above normal levels to a present value for purposes of determining business “goodwill” in quantifying the total value of tangible and intangible assets of a business that gives rise to the potential for “double-dipping.” If these future benefits are also utilized by the Court in order to determine a spouse’s future support obligations, these future benefits have been counted twice, hence the “double-dip.”

Among the leading cases addressing the concept of “double-dipping” is Grunfeld v. Grunfeld, 94 N.Y.2d 696 (2000). In Grunfeld, the New York Court of Appeals succinctly identified this concept by stating:

We agree with the defendant that the Supreme Court [the trial court in New York state] impermissibly engaged in the “double-counting” of income in valuing [the husband’s] business, which was equitably distributed as marital property, and in awarding maintenance to the [wife]. . . Here, the valuation of the [husband’s] business involved calculating the [husband’s] projected future excess earnings. Thus, in valuing and distributing the value of the [husband’s] business, the Supreme Court converted a certain amount of the [husband’s] projected future income stream into an asset. However, the Supreme Court also calculated the amount of maintenance to which the [wife] was entitled based on the [husband’s] total income, which must have included the excess earnings produced by his business. This was improper. ‘Once a court converts a specific stream of income to an asset, that income may no longer be calculated into the maintenance formula and payout.’

Grunfeld, 94 N.Y.2d at 705, citing McSparron v. McSparron, 87 N.Y.2d 275 (1993).  See also Rattee v. Rattee, 767 A.2d 415 (N.H. 2001) (business income exceeding “reasonable compensation” that was utilized to calculate value of business was properly disregarded for support calculation purposes, thus avoiding “double-dip”).

While the concept of “double-dipping” is widely recognized, not all jurisdictions have embraced its theories.  For example, in the recent case of Steneken v. Steneken, 873 A.2d 501 (N.J. 2005), the New Jersey Supreme Court specifically rejected the concept of “double-dipping” in the context of business valuation for divorce purposes.  In determining that such an issue is subject to an overriding concept of fairness, the Court stated that:

Because we embrace the premise that alimony and equitable distribution calculations, albeit interrelated, are separate, distinct, and not entirely compatible financial exercises, and because asset valuation methodologies applied in the equitable distribution setting are not congruent with the factors relevant to alimony considerations, we conclude that the circumstances here present a fair and proper method of both awarding alimony and determining equitable distribution. We find no inequity in the use of the individually fair results obtained due to the use of an asset valuation methodology normalizing salary in an on-going close corporation for equitable division purposes, and the use of actual salary received in the calculus of alimony.  The interplay of those calculations does not constitute ‘double-counting.’

Steneken v. Steneken, 873 A.2d 501, 507 (N.J. 2005) (emphasis supplied).

Our appellate courts have recognized and addressed the concept of “double-dipping” in the context of divorce proceedings on more than one occasion. For example, in Dalessio v. Dalessio, 409 Mass. 821 (1991), the Appeals Court found that there had not been any double-counting of the proceeds of a large tort settlement arising from the husband’s industrial accident. Id. at 827-828.  In so finding, however, the Appeals Court specifically instructed that:

So long as it is possible to identify separate portions of a given asset of a divorcing spouse as the separate bases of the property assignment and any alimony or support obligations (thus avoiding redistribution by an alimony or support order of specific assets that already have been equitably assigned), there is nothing improper about including a particular asset within a spouse’s assignable estate, assigning part of it, and then counting its remainder for alimony and child support purposes.”

Dalessio, 409 Mass. at 828 (emphasis supplied).

As the Appeals Court noted in Dalessio, the key concept when addressing whether an impermissible double-dip has occurred is whether it is possible to identify separate portions of an asset as forming separate bases for a division of property and a support obligation. Unless these separate components can be identified, quantified and separated from the Court’s decision-making process for property division and support calculation purposes, an impermissible double-dip has occurred. In Dalessio, the future income to be derived from the asset formed no part of the determination of the value of that asset; hence, no impermissible “double-dip” had occurred.

In Champion v. Champion, 54 Mass. App. Ct. 215 (2002), the Appeals Court

again considered the concept of “double-dipping” in the context of the valuation of a husband’s telecommunications equipment business. In holding that there had been no double-counting in the trial judge’s assignment of property and determination of support, the Appeals Courtnoted that the value for the husband’s business had been determined using a “net asset” valuation methodology which did not include any quantifiable “goodwill” value. Id. at 217. Because this valuation methodology does not consider future, excess earnings as part of the calculation of the value of the business, the Appeals Court found that the corresponding support order had not double-counted the husband’s future earnings from the business. Id. at 221.

Most recently, in Sampson v. Sampson, 62 Mass. App. Ct. 366 (2004), the Appeals Court determined that there appeared to have been impermissible “double-dipping” with respect to the trial judge’s divorce judgment, thus requiring a remand for further consideration of the apparent inequities that existed. The Appeals Court noted in Sampson that, unlike the “net asset” valuation method that had been utilized in Champion, a “capitalized income” valuation methodology had been used by both parties’ experts in valuing the wife’s business. Id. at 375. The Appeals Court further noted that “a [capitalized income] method requires subtraction from business income of a reasonable salary expense for the operator of the business [citations omitted].  Without subtraction of a sum representing a reasonable salary, there is significant concern that the business may be overvalued. Moreover, where such a salary is subtracted, it facilitates the identification of those portions of a given asset providing separate bases of property assignment and alimony as articulated by Dalessio v. Dalessio.”  Id. at 375-376.

In finding that “double-dipping” may have occurred in Sampson, the Appeals Court went on to state that:

When considering the wife’s income for the purposes of determining her need for support, the judge made no adjustments, concluding that she would earn $41,912 a year. The $41,912 was based on what she was earning from the business without recognizing that some of that income had been attributed to the value of the business itself. For that additional income, the husband had already been compensated by providing him with an otherwise disproportionate share of the proceeds from the sale of the house [citations omitted]. Concerns are thereby raised that either the value of the business was inflated by artificially deflating the salary of the owner-operator or, conversely, that the wife’s income was inflated when determining her need for support [citations omitted].  In sum, there appear to be some ‘double counting’ and other inequities present.

Sampson, 62 Mass. App. Ct. at 377 (emphasis supplied); see also Adlakha v. Adlakha, 65 Mass. App. Ct. 860, 866-867 (2006) (trial judge did not engage in “double-dipping” where alimony and property division awards were based upon consideration of separate components of spouse’s overall income from medical practice).

In appropriate circumstances where it would be inequitable to disregard the “double dip,” there are two alternatives whereby a Court may avoid this concept.  Specifically, the Court could order an equitable division of the marital estate based upon a value for the spouse’s business interest according to recognized valuation methodologies which utilize “excess earnings” as part of the valuation analysis, with a corresponding calculation of that spouse’s support obligations based upon the fair market “reasonable compensation” of the business owner (as considered and determined as part of the valuation methodologies that were utilized).

Alternatively, the Court could order an equitable division of the marital estate based upon a value for the spouse’s business without consideration of the “excess earnings” of the business, with a corresponding calculation of that spouse’s support obligations based upon the spouse’s actual total net earnings from the business (including therein any “excess earnings” above “reasonable compensation”). See generally Kristal, The Double-Dipping Consideration in Marital Dissolution Valuations, American Journal of Family Law, Vol. 19, No. 2, p. 71 (Summer 2005) (using valuations premised upon different bases for owner’s compensation properly separates owner-operator’s compensation into two parts: (1) what he or she earns from managing the business; and (2) what he or she earns from owning (investing in) it); In re Marriage of Schneider, 824 N.E.2d 177, 185-186 (Ill. 2005) (“goodwill” value of dental practice improperly double-counted in both division of assets and in the level of maintenance and support awarded).

The potential inequities that may result by failing to eliminate the “double-dip” are not limited to those mentioned above. In light of the fact that a significant portion of the value of a spouse’s business is often comprised of “goodwill” value, this goodwill value is directly tied to, and dependent upon, the projected future earnings of the business. Because the goodwill value of the business is based upon projections only, many unforeseen and/or uncontrollable circumstances could significantly diminish, or even eliminate, these projected future earnings. For example, the business could experience a significant financial downturn, material changes in the way in which revenues are generated within a particular industry could occur, the owner-spouse could become disabled and incapable of working to his/her projected full capacity, or the owner-spouse could die prematurely.

Notwithstanding the myriad potential changes in circumstances, the non-owner spouse would presumably immediately receive his/her equitable share of the total value of the owner spouse’s business (including “goodwill”) via an offsetting assignment of other, presently existing (and perhaps liquid) assets. As a result, although the owner-spouse would retain his/her business as part of the overall asset division, he/she would not be able to immediately reap the financial benefit of the inherent future benefits (the “excess earnings” of the business) that comprise the total value of the business for many years to come. In addition, it is quite possible that the future benefits that are essentially “built-in” to the value of the owner spouse’s business may never materialize. Such events could result in an inequitable division of property in the non-owner spouse’s favor.

Unfortunately, the above-referenced material changes in circumstances could not be addressed by the Court in the future, as it is well-settled that an equitable division of marital assets cannot be modified in the future.  Dumont v. Godbey, 382 Mass. 234, 238 (1981). By comparison, however, if the Court considered the excess earnings of the business only for purposes of determining an appropriate level of support, the Court (and the parties) would remain in a position to revisit the issue of support via a complaint for modification in the event that future, unforeseen and/or uncontrollable circumstances were to occur. Such an approach may provide the parties, and the Court, with more flexibility to properly address changes in circumstances which may adversely affect the fundamental earnings projections that are inherent in the valuation methodologies of the business. See Drapek v. Drapek, 399 Mass. 240, 244 (1987) (present valuing future earned income for equitable assignment under G.L. c. 208, §34 forecloses consideration of the effect of future events on an individual’s earning capacity, as property settlements are not subject to modification).

Another potential factor that might be relevant concerns the tax consequences associated with essentially awarding a portion of the owner-spouse’s future business earnings to the non-owner spouse by means of an offsetting, tax-free assignment of property.  By making an offsetting, tax-free property assignment to the non-owner spouse, the owner spouse will effectively receive the “goodwill” value of his/her business subject to the inherent income taxes that will be due on these future excess earnings as they are earned.  Specifically, since the future excess earnings received by the owner-spouse will be subject to federal, state and FICA/Medicare self-employment taxes potentially totaling in a range of forty (40%) percent or more in the aggregate (if, as and when received), the actual net benefit to the owner-spouse may be significantly impacted upon and reduced by future income taxes.

While the concept of “double-dipping” in business valuation for divorce purposes is a recognized theory, the particular facts and circumstances of each case must be thoroughly analyzed in order to fully understand the potential inequities that may exist. In this regard, counsel must have a thorough understanding of the valuation methodologies that have been utilized by the expert witnesses who have participated in the valuation process, including the particular aspects of the business enterprise that have been considered for asset valuation purposes. Counsel who wish to have the Court consider the “double-dipping” issue should also be prepared to introduce expert testimony regarding this concept in order to specifically show the extent, if any, that this concept impacts upon the inherent value of the business enterprise and the interrelated issues of alimony and child support. Only after a thorough review of these factors has been undertaken can an appropriate analysis of the “double-dipping” issue be considered.

Mr. Rivers is a partner in the Boston law firm of Lee, Rivers & Corr LLP where he concentrates his practice in the areas of domestic relations and civil litigation.

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