In our previous article, “How Executive Compensation Impacts Divorce,” we presented the types of executive compensation that should be considered for purposes of marital property division, as well as future income that should be included for support calculations. This article will examine the basics of dividing executive compensation. We begin by identifying several key aspects of executive compensation in divorce.
Identifying the Marital Portion
In most cases involving divorce, we must first determine to what extent the compensation is marital and subject to division. In all cases, if the compensation was awarded and vested during the marriage, they are 100% marital. If awarded but not vested, we must first determine the extent the award is based on past service vs. future performance. To the degree based on future performance, that portion would be considered separate property. To the extent that there are no plan-specific rules regarding the division of benefits, coverture fractions are used to determine the percent marital.
Applying Coverture Fractions
Coverture fractions based on past performance are based on the Hug formula. The numerator (marital service credit) represents the total number of years or months during which the retirement benefits were earned or accrued while the spouses were married. This includes the period from the date of marriage to the date of separation or divorce filing, whichever is applicable. The denominator (total service credit) represents the total number of years or months that the spouse worked or accumulated service credit that counts towards the retirement benefit. Up to the present date or retirement date. Calculate the marital coverture fraction by dividing the numerator (years of marital service credit) by the denominator (total years of service credit).
Coverture fractions based on future performance are based on the Nelson formula. The numerator (period of marital service) represents the period during which the spouse earned or accrued retirement benefits while the marriage was intact. This typically starts from the date of marriage to the date of separation or divorce filing, depending on state laws. The denominator (total period of service) represents the total period during which the spouse worked or accumulated service credit that counts towards the retirement benefit up to the present date or anticipated retirement date. Calculate the marital coverture fraction by dividing the numerator (period of marital service) by the denominator (total period of service).
Divide or Offset?
Most executive compensation cannot transfer directly to the non-employee spouse. Even if it can be, it may not be advantageous to transfer it at the time of vesting or payment. In these cases, we need to be able to provide a value for the portion earned during the marriage so that the employee-spouse can keep the compensation while the non-employee spouse receives other assets to compensate. Valuation, however, is not always a straightforward exercise.
Tax Considerations
When transferring to a non-employee spouse, we need to adjust for the taxes paid at the time of vesting or exercise. Depending on the plan, the recipient’s marginal tax rate applies to some transfers when exercised. Only the employee spouse can exercise others, using the employee spouse’s marginal tax rate at vesting or exercise.
Attorneys may subpoena the employee spouse’s company or the employee spouse can provide documents that are necessary to determine if the executive compensation is based on past or future performance, granting conditions and vesting schedules. Request the following documents:
Compensation plans and all amendments
Grant agreements and all amendments
All correspondence (letters, memorandum, emails) relating to grants
Summary plan descriptions
Annual statements of employee benefits
Employee manuals the describe employee’s right to benefits
Employment contract or offer letter
Beneficiary designation forms
Employee’s employment file
Valuations conducted for IRC Section 409(A) purposes or other purposes
Employee’s W2’s
In our next article, we will look at some of the nuances of handling executive compensation across the more common types of executive compensation.
Take Control of Your Future
When you consider divorce, one of the biggest realities for those in the divorce process is the financial settlement and financial analysis post-divorce. Get the assistance of Berni Stevens, a Mediator and Certified Divorce Financial Analyst® (CDFA®.)
Berni provides step-by-step guidance on matters related to divorce. With a wide range of experience and expertise related to divorce issues. Berni will simplify the process and provide much-needed clarity in areas such as long-term tax consequences, asset, and debt analysis, dividing pension plans, continued health care coverage, stock option elections, protecting support with life insurance, and much more.
In our previous article, “How Executive Compensation Impacts Divorce,” we presented the types of executive compensation that should be considered for purposes of marital property division, as well as future income that should be included for support calculations. This article will examine the basics of dividing executive compensation. We begin by identifying several key aspects of executive compensation in divorce.
Identifying the Marital Portion
In most cases involving divorce, we must first determine to what extent the compensation is marital and subject to division. In all cases, if the compensation was awarded and vested during the marriage, they are 100% marital. If awarded but not vested, we must first determine the extent the award is based on past service vs. future performance. To the degree based on future performance, that portion would be considered separate property. To the extent that there are no plan-specific rules regarding the division of benefits, coverture fractions are used to determine the percent marital.
Applying Coverture Fractions
Coverture fractions based on past performance are based on the Hug formula. The numerator (marital service credit) represents the total number of years or months during which the retirement benefits were earned or accrued while the spouses were married. This includes the period from the date of marriage to the date of separation or divorce filing, whichever is applicable. The denominator (total service credit) represents the total number of years or months that the spouse worked or accumulated service credit that counts towards the retirement benefit. Up to the present date or retirement date. Calculate the marital coverture fraction by dividing the numerator (years of marital service credit) by the denominator (total years of service credit).
Coverture fractions based on future performance are based on the Nelson formula. The numerator (period of marital service) represents the period during which the spouse earned or accrued retirement benefits while the marriage was intact. This typically starts from the date of marriage to the date of separation or divorce filing, depending on state laws. The denominator (total period of service) represents the total period during which the spouse worked or accumulated service credit that counts towards the retirement benefit up to the present date or anticipated retirement date. Calculate the marital coverture fraction by dividing the numerator (period of marital service) by the denominator (total period of service).
Divide or Offset?
Most executive compensation cannot transfer directly to the non-employee spouse. Even if it can be, it may not be advantageous to transfer it at the time of vesting or payment. In these cases, we need to be able to provide a value for the portion earned during the marriage so that the employee-spouse can keep the compensation while the non-employee spouse receives other assets to compensate. Valuation, however, is not always a straightforward exercise.
Tax Considerations
When transferring to a non-employee spouse, we need to adjust for the taxes paid at the time of vesting or exercise. Depending on the plan, the recipient’s marginal tax rate applies to some transfers when exercised. Only the employee spouse can exercise others, using the employee spouse’s marginal tax rate at vesting or exercise.
Attorneys may subpoena the employee spouse’s company or the employee spouse can provide documents that are necessary to determine if the executive compensation is based on past or future performance, granting conditions and vesting schedules. Request the following documents:
Compensation plans and all amendments
Grant agreements and all amendments
All correspondence (letters, memorandum, emails) relating to grants
Summary plan descriptions
Annual statements of employee benefits
Employee manuals the describe employee’s right to benefits
Employment contract or offer letter
Beneficiary designation forms
Employee’s employment file
Valuations conducted for IRC Section 409(A) purposes or other purposes
Employee’s W2’s
In our next article, we will look at some of the nuances of handling executive compensation across the more common types of executive compensation.
Take Control of Your Future
When you consider divorce, one of the biggest realities for those in the divorce process is the financial settlement and financial analysis post-divorce. Get the assistance of Berni Stevens, a Mediator and Certified Divorce Financial Analyst® (CDFA®.)
Berni provides step-by-step guidance on matters related to divorce. With a wide range of experience and expertise related to divorce issues. Berni will simplify the process and provide much-needed clarity in areas such as long-term tax consequences, asset, and debt analysis, dividing pension plans, continued health care coverage, stock option elections, protecting support with life insurance, and much more.
Thinking about withdrawing funds from your retirement accounts to settle a divorce agreement? Think again!⠀ ⠀ Consulting with a Certified Divorce Financial Analyst (CDFA) before touching your retirement accounts can save you a significant amount of money. A CDFA helps you understand the legal and financial implications of dividing retirement assets. They can guide you through the Qualified Domestic Relations Order (QDRO) process, which allows you to divide retirement plans without facing the 10% early withdrawal penalty and additional taxes. By following the correct legal steps, you can ensure a fair division of assets while protecting your financial future.⠀ ⠀ Don’t risk losing your hard-earned money. DM us ‘Appointment’ to meet with Berni Stevens, PhD, CDFA, for a preliminary conversation and learn how to protect your assets during divorce.⠀
When you consider divorce, or if you know someone who is contemplating divorce, one of the biggest realities for those in the divorce process is the financial settlement and financial analysis post-divorce. Get the assistance of Berni Stevens, a Mediator, Certified Divorce Financial Analyst® (CDFA®), and divorce coach.
Berni provides step-by-step guidance on matters related to divorce. With a wide range of experience and expertise related to divorce issues, Berni will simplify the process and provide much-needed clarity in areas such as long-term tax consequences, asset, and debt analysis, dividing pension plans, continued health care coverage, stock option elections, protecting support with life insurance, and much more. She can also guide you through building an effective parenting plan, and getting your divorce processed through the court.
If you’re reading this, then obviously you’re thinking about ending your marriage. Before you initiate your divorce, I’m going to ask you to take a few steps to ensure the best outcome for you should you decide to move forward. This is not a decision to be taken lightly and a little preparation can go a long way.
The reality for lots of couples that have invested in each other for many years is that if you’re going to end the relationship, you now have to stop thinking emotionally and start thinking financially.
#1 Evaluate What You Really Know About Your Finances
If your answer is anything but “Oh, I handle all our finances, I know exactly where we are,” then you have work to do. If you have been out of touch with your family finances for more than five years, don’t even try to get caught up. Get yourself to a CDFA® (Certified Divorce Financial Analyst) ASAP! You can find one in your area by going to the Institute for Divorce Financial Analysts. Do this BEFORE you tell your spouse you want a divorce. Your CDFA® will help you do a little digging to get some information before the information mysteriously disappears. They’ll also help you see what your financial life after divorce might look like.
#2 Gather Documents Before your Divorce Starts
This is the one thing you can do to save yourself a ton of money in the divorce process. Anything you can gather before you meet with either an attorney, a mediator, or a CDFA® will reduce the amount you ultimately have to spend out-of-pocket. Here a quick list of must-have documents.
3 years of tax returns
6 months of bank statements on all accounts
6 months of statements on each of your marital and separate investment accounts including 401k, deferred
compensation, ESPP, ESOP, 403b, 529, IRA, etc. If you are baffled by those different account types or you’re not
even sure if your spouse has a retirement plan, get to a CDFA® now!
Most recent 4 paystubs
Most recent mortgage statement on any properties owned
Copies of all insurance policies and annuities (the policies themselves as well as statements)
VIN numbers and mileage on vehicles owned
Most recent statements on debts, credit cards, car loans, etc.
Details of any business interests, e.g. S Corps, LLC’s, and partnerships
#3 Get Organized
Once you’ve gathered all the data, find a way to keep it all organized. Some people create a 3-ring binder with tables for each section, others put all their documents in a protected electronic environment like Dropbox, iCloud, or Google Drive. This is best when you need quick and easy access in a mobile format. Again, this will save you a lot of money down the road.
#4 Research Alternative Divorce Processes
There are several ways to get a divorce, each with its own pros and cons. Which method you choose will be largely dictated by the relationship between you and your spouse. If you are afraid for your or your children’s safety for any reason at all of it your spouse is denying you access to enough cash to survive, get a lawyer.
If you believe you and your spouse will be able to rationally discuss and negotiate the details of your divorce and be fair and honest, you might consider a do-it-yourself divorce or use an internet service to guide you. Beware: just because you and your spouse are getting along today doesn’t mean it will always be this way.
Your county’s divorce website will most likely give you an overview of the process and forms you’ll need if you going the DIY approach. There are lots of cheap internet services, too, that can produce divorce forms for your jurisdiction, but not all counties accept their forms as-is. These cheaper alternatives may seem attractive upfront but the money it may take to correct any mistakes you make along the way could cost you thousands of dollars.
If your financial situation is a bit more complex, e.g., there’s a pension involved or one party is self-employed, or the idea of DIY frightens you, then you should consider using a CDFA® as a financial neutral as part of a collaborative team or as a mediator to help you craft a fair settlement. Your CDFA® may also be able to get your legal documents prepared for you, too. When couples go this route, they are more likely to remain friends—it’s a respectful, honest way to go through the process and saves both parties significant money by not having to pay expensive lawyers.
As a last resort, if one or both parties can’t manage to cooperate at any level and seem determined to go to war, then hiring attorneys may be your only option. Unfortunately, you’ll need to say goodbye to about $15,000 per spouse, at a minimum. A little preparation before you move forward with a divorce can go a long way towards reducing the cost of your divorce and creating a fair settlement. Wishing you a gentle divorce and a bright future!
The divorce process can be scary and overwhelming. Starting with a plan and professionals that you trust to guide you through the process can be key in making sure you’re ready for your future. If you’re thinking about divorce schedule your complimentary divorce strategy session where we’ll explore your options and connect you with any resources you might need.
As soon as you begin to contemplate divorce, the nauseating, panic-attack-inducing realization of losing half of your net worth kicks in. You find yourself wondering if it’s even worth it to consider leaving if you’re just going to end up broke and starving.
There are ways to ensure that your financial future is not destined for disaster. First and foremost, be sure you involve a Certified Divorce Financial Analyst (CDFA®) or CDFA®-Mediator so that you will be fully informed of all the creative settlement possibilities that may be open to you. They are your best bet when you want to keep your money safe.
A couple married 24 years were referred together to a colleague for assistance with their divorce. They had gone to an attorney together and were completely amicable. The attorney made it clear that he could only do their document preparation since he was ethically bound to represent only one party. That was ok, but they asked how they would determine their property division. He responded,
“This is a community property state so we’ll just divide each asset and each debt exactly 50/50.”
The couple just didn’t feel like that was the smart thing to do. They were referred to the CDFA® to explore options.
After gathering all of their financial documents and completing the analysis, the CDFA® put together two reports for the clients. The first reflected an exact 50/50 split as the attorney had suggested. The second was a creative settlement solution that also resulted in a net 50/50 split but took into consideration tax planning and consequences as well as the needs of each party as they planned for the next phase of their lives.
This couple had less than $800k in total net worth and the creative settlement solution resulted in an additional $20,000 EACH to their bottom line just because some financial intelligence was used to determine their settlement. That’s real money! That’s how you keep your money! Needless to say, the couple was thrilled knowing that they saved $40,000!
Don’t go into this blind. There are so many ways to ensure that both of you get to keep more of your own money. Get the right experts on your team. We’d love to help you! Call us today.
