speak-to-an-attorenyColorado High Net Worth Divorce Attorney

by Marc Patoile

A high net worth divorce is a divorce involving a couple with significant assets and/or income. Typically, these divorces involve complex financial issues, including property division, spousal support, and child support. In a high net worth divorce, the parties may have valuable real estate holdings, investment portfolios, business interests, and other assets that need to be divided equitably between them.

High net worth divorces often require specialized legal expertise in complex financial matters, tax implications, and business valuations. Attorneys who specialize in high net worth divorce cases may work closely with financial advisors, accountants, expert witnesses, and other professionals to ensure that their clients’ interests are protected throughout the divorce process.

In addition, high net worth divorces may also involve issues such as prenuptial agreements, trusts, and estate planning. These agreements and structures can impact the distribution of assets and other financial matters during the divorce, and may require the expertise of specialized attorneys to navigate.

Overall, high net worth divorces can be particularly complex and emotionally charged, requiring specialized legal expertise and attention to detail to ensure a fair and equitable outcome for both parties.

Preventing critical mistakes in high asset divorce cases is not something that many Colorado divorce attorneys get the opportunity to do very often in their practice. For over 40 years, from our state of the art law offices in Douglas County, our seasoned divorce attorneys work with teams of professions to ensure that your assets are fairly and equitably looked after in a divorce. Our experienced Colorado High Net Worth Divorce Attorneys assist clients with divorce and other family law cases throughout the State of Colorado.

High Net Income Divorces, Stock Options and RSU’s in Colorado Divorces

If you have a high net income, are self-employed, employed by a family business, have significant bonuses, stock options, or things such as Restricted Stock Units (RSUs), you need a highly skilled Colorado divorce attorney.

Restricted Stock Units (RSUs) are a type of stock-based compensation used to attract and retain employees. Like stock options and phantom stock, RSUs offer a way for your employer to let you share in the company’s success. RSUs gained popularity as an alternative to stock options after accounting scandals involving companies like Enron and WorldCom. Before then, stock options were more common. However, after a 2004 Financial Accounting Standards Board ruling changed the accounting rules for stock options, companies began favoring RSUs.  Companies such as Amazon, Halliburton, Lockheed, Newmont, and many others frequently give RSUs in Colorado, together with a lot of mining, oil and gas, and other .com type startups.  Often the RSUs end up being more valuable than one’s salary, if the company does well.

RSUs, like stock options, encourage employees to stay with the company until the shares vest and to help the company perform well so the stock price increases. So, what exactly are RSUs?

RSUs are a promise to issue shares of employer stock once certain conditions are met. These shares are “restricted” because they are subject to a vesting schedule based on the length of employment or performance goals. Additional restrictions may apply, especially in private companies, such as limitations on selling or transferring shares.

RSUs differ from stock options in a few key ways. For example, if the stock price drops significantly, stock options can lose all practical value if the exercise price is higher than the stock price, making them worthless. This isn’t the case with RSUs; even if the share price falls, RSUs still hold some value unless the stock price drops to $0. However, you must remain employed until the RSUs vest to benefit from them. If you leave the company, any unvested RSUs are typically forfeited, though exceptions may apply in certain situations, such as death, disability, or retirement, depending on the RSU agreement.

RSUs and Taxes

RSUs are taxed when the shares vest, not when they are granted. Your taxable income is based on the value of the shares at vesting. For example, if 100 shares vest at $10 per share, your taxable income is $1,000. This income is subject to federal, state, and payroll taxes (Social Security, Medicare), with the company required to withhold taxes. Employers may offer various methods to pay these taxes at vesting, the most common being withholding some of the vested shares to cover the withholding taxes. The stock price at vest becomes your cost basis, and the vesting date marks the start of your holding period. Holding the shares for more than one year after vesting results in any price increase being taxed as long-term capital gains; otherwise, it’s taxed as short-term capital gains.

Example of How RSUs Work

Consider a scenario where you’re granted 10,000 RSUs that vest at 25% per year. The market price at grant is $20 per share.

– **At Grant:** The total pre-tax value is $200,000, but there’s no taxable income to report yet.
– **Year 1:** 2,500 shares vest at $25 per share, resulting in $62,500 of taxable income.
– **Year 2:** 2,500 shares vest at $30 per share, resulting in $75,000 of taxable income.
– **Year 3:** 2,500 shares vest at $10 per share, resulting in $25,000 of taxable income.
– **Year 4:** 2,500 shares vest at $40 per share, resulting in $100,000 of taxable income.

The total value of the vested shares is $262,500. This example uses a “graded” vesting schedule, where shares vest in portions over time. Some companies use “cliff” vesting, where 100% of the shares vest at once after a certain period or performance goals are met. Vesting schedules may also combine both methods.

Understanding RSUs in a Divorce

During a divorce, both parties must disclose all assets and compensation, including RSU grants, as they can be valuable assets. Valuing and dividing RSUs can be challenging due to fluctuating stock prices. RSUs granted during marriage but vesting after separation are often considered part marital and part separate property. Determining the marital portion depends on several factors, including when the RSUs were awarded and their vesting schedule.

Two main ways to divide RSUs in a divorce include:
1. **The employee spouse keeps the RSUs and buys out the other spouse’s interest based on current value.**
2. **Deferred division, where the employee spouse holds the unvested RSUs until they vest, and then the non-employee spouse receives their share.**

Valuing or Dividing RSUs in Divorce

To value RSUs for a buyout, determine the marital portion, calculate the pre-tax value, apply a tax discount, and then divide by two for each spouse’s share. For example, if 200 unvested RSUs are worth $10 each and 100 are marital property, with a 25% tax rate, the after-tax community value is $750, and each spouse’s share is $375.

How RSUs Impact Alimony and Child Support

RSUs can affect alimony and child support calculations, which are based on total income from all sources. RSUs and other forms of compensation can complicate these calculations due to irregular payment schedules. Courts may treat RSUs as income when they vest, impacting support payments.

The Supreme Court in In Re Marriage of Balanson, 25 P.3d 28 (Colo. 2001) addressed the treatment of stock options. The court first noted that under C.R.S. 14-10-113, a determination as to property division requires two steps: first, a court must determine whether an interest constitutes “property”; if so, the court must then determine whether the property is marital or separate. The court recognized previous holdings that in passing C.R.S. 14-10-113, the legislature intended the term “property” to be broadly inclusive. The court reiterated their prior definition of “property” as including everything that has an exchangeable value or which goes to make up wealth or estate. Finally, the court listed
the factors that should be considered when determining whether something constitutes property: whether it can be sold, transferred, conveyed, or pledged, or whether it terminates on the death of the owner. The court noted prior holdings that while enforceable contractual rights constitute property, interests that are merely speculative are mere expectancies. Rather than relying on whether an employee’s stock options are vested, the Supreme Court held an employee stock option constitutes property for purposes of dissolution proceedings only when the employee has an enforceable right to the options. To determine if an employee has an enforceable right to stock options, a court must look to the terms of the contract granting such options. If an employee has a presently enforceable right under the contract, regardless of whether the options are presently exercisable, such a right constitutes a property interest rather than a mere expectancy. The Supreme Court gave the following example:

For example, if the contract granting the options indicates that they were granted in exchange for present or past services, in the situation for instance, where an employer offers stock options as a form of incentive compensation for joining a company, the employee, by having accepted employment, has earned a contractually enforceable right to those options when granted, even if the options are not yet exercisable.4 *40 See Miller, 915 P.2d at 1318–19. On the other hand, if the options were granted in consideration for future services, the employee “does not have enforceable rights under the option agreement until such time as the future services have been performed.” Id. at 1318. Balanson, 25 P.3d at 39-40

Frequently Asked Questions about RSUs

– **What is the withholding rate on RSUs?**
RSUs are subject to federal, Social Security, Medicare, and state withholding requirements.

– **Do you receive dividends on RSUs?**
You have voting and dividend rights only after vesting, though some companies pay dividend equivalents on unvested RSUs.

– **How can I tell if my spouse has RSUs?**
Look at pay stubs and W-2s for “RSU” or “restricted stock” entries, or consider issuing a subpoena to the employer.

– **What information do you need for RSUs in a divorce?**
You need details such as grant number, grant date, vesting schedule, and account statements for the stock plan account.

One of the largest, most complex aspects of divorce is the distribution of assets and debt. How do you ensure that you will walk away with a obtaining or retaining a fair portion of the marital estate? Our divorce attorneys combine the legal and financial expertise to give you the knowledge you’ll need from the outset of your case and we assist clients with divorce throughout the Denver Front Range area from our Douglas County law offices.

  • Avoid many of the costly asset division traps that can you to miss out on what you deserve.
  • Negotiate and structure the division of real estate including any second homes or investment properties.
  • Analyze tax records to locate hidden and overlooked assets, income and debt.
  • Make the best use of financial and valuation experts.
  • Explore how trusts are divided in divorce.
  • Use QDROs and other tools to value and divide complex retirement plans and accounts.

We help our clients find new approaches to negotiating the settlement and we bring seasoned courtroom experience as former prosecutors to ensure that cases that need to be litigated are done so at the highest levels of trial practice.

We assist high asset/high net worth divorce clients with:

  • Commingled Separate and Community Assets
  • Vacation Homes and Investment Real Estate Interests
  • Valuing and Dividing Family Business Assets
    • Deciphering Valuation Discounts
    • Interests in Closely Help Corporations
    • Stock Option Compensation
    • Determining the Spouse’s Contribution to the Business
    • What to Look for When Reviewing a Business Valuation
  • Complex Retirement Plans
    • QDROs
    • State, Federal, & Military Retirement Plans
  • Finding Hidden Assets, Income and Debts: Using Tax Returns and other Financial Documents
  • Using Forensic Accountants and Business Valuation Experts
    • Using the Expert Reports
    • Depositions and Cross-Examination of Financial Experts
    • Handling Conflicting Expert Testimony
    • Preparing Effective Sworn Financial Statements
  • Dividing Trust Assets In Divorce
    • Locating and Trust Assets
    • Present and Future Value
    • Proving Trusts as Divisible Assets: Key Tactics
    • How to Counter Argue Trust as Assets
    • Tax Considerations and Transfer Fees
    • Handling Special Needs Trusts in Light of Divorce
  • Other Complex Asset Division Issues
    • Spousal Benefits Eligibility During and After Divorce
    • Enforceability of Prenuptial Agreements
    • Asset Management of a Disabled Spouse
    • The Effect of Bankruptcy on Marriage Dissolution
    • High Maintenance/Complex Dissolution When Client is Not Liquid
    • Post-Decree Litigation
    • Mediation and Arbitration

Expert Witnesses are Often Used in These Cases to Evaluate Businesses, Income, Real Property and More

An expert witness is a professional who has specialized knowledge, skill, education, or experience in a particular field or industry and is called to provide testimony or evidence in a legal proceeding.

Expert witnesses are often called upon in court cases to help the judge and jury better understand complex or technical information related to the case. Their role is to provide impartial, unbiased, and objective opinions based on their expertise to assist the court in making a decision.

Expert witnesses can be called to testify in a variety of legal cases, including civil, criminal, and administrative proceedings. They may be hired by either the prosecution or defense, or by the court itself.

To be considered an expert witness, a person must demonstrate their qualifications and experience in a particular field or industry. They may be required to provide a resume, curriculum vitae, or other documentation to establish their credentials. In some cases, expert witnesses may also be required to undergo a deposition, where they are questioned under oath before the trial.

Qualified Domestic Relations Orders in Colorado Divorces

A QDRO (Qualified Domestic Relations Order) is a legal order issued by a court that directs a retirement plan administrator to distribute all or a portion of a retirement account to a former spouse or dependent as part of a divorce or separation settlement. A QDRO is necessary when a retirement account is considered a marital asset subject to division in a divorce or legal separation. Without a QDRO, the transfer of the retirement account to the former spouse or dependent would be treated as a taxable distribution to the account owner, and the recipient would be subject to early withdrawal penalties. A QDRO allows for a tax-free transfer of a portion of the account to the recipient, who can then roll it over into their own retirement account. It’s important to note that not all retirement accounts require a QDRO. Only retirement accounts that are subject to ERISA (Employee Retirement Income Security Act), such as 401(k)s and pension plans, require a QDRO. IRA accounts, for example, do not require a QDRO.

Call Marc Patoile or one of our seasoned Colorado divorce attorneys today for a free telephone consultation on your high net worth divorce issues at 303-688-3045.

 

Awards-Home-Practice-Areas