Dividing Stock Options In a Divorce

Stock options in high-potential private companies can represent a significant source of wealth on a family's balance sheet. However, in a divorce proceeding, stock options, like other marital property, must be valued and divided between the parties.

But how do you determine the value of stock options?The decision to exercise stock options implicates yet another thorny issue: which party supplies the cash to exercise the options? One party will almost certainly consider the options risky and low-valued whereas the other party will try to characterize the company as the next Google. Lawyers may use Black Scholes and other methods to try to arrive at a value, but this doesn't solve the basic problem that in fact no one knows whether the stock in the company will have any value at all since many private companies fail.

Who bears the risk of that potential failure? The solution is to  exercise the options and then the resulting shares of stock can be divided and transferred as a tangible asset. Although most private companies have transfer restrictions on their private stock, transfers between immediate family members are usually exempted. Or if the options can be transferred between the parties (such as non-qualified options NSOs), the options can be transferred and then exercised. The decision to exercise stock options implicates yet another thorny issue: which party supplies the cash to exercise the options? The underlying stock typically cannot be sold and though the company may have high potential, it also carries a high risk of failure. Neither party in the divorce may want to bear that risk or be financially able to do so. And if taxes are due as a result of the exercise, how are those to be paid?

The solution is to have the Employee Stock Option Fund provide the funds needed to exercise the options. Each party in the divorce can then safely presume that they were treated equally with respect to the disposition of the stock option assets. Under the ESO Program, no payments are due unless and until there is a liquidity event involving the company that issued the shares, such as a sale or IPO. At that time, the owners of the stock and ESO share the upside of the liquidity event and ESO is repaid. ESO can also finance the potential tax liabilities associated with the stock, such as Alternative Minimum Tax (AMT).

If you'd like to know more about how ESO can help in your particular financial situation, please contact us at the ESO Fund.