Share Options

Are you separating and you or your partner are entitled to share options? Are you unsure how share options are valued or treated in a Family Law matter? 

Read on to find out more about share options and how they are valued and characterised in Family Law disputes.

Share options are commonly issued to employees as part of their remuneration package or as an incentive-based or performance-based term of employment. It is used as a means of linking employee performance to shareholder value. Typically there is a period of time before an employee is able to exercise the option by purchasing shares. This raises two (2) important questions to be answered in relation to share options in family law property proceedings:-

  1. Are share options considered property or a financial resource?
  2. How are share options valued?

What is a share option?

Before considering how the law answers these two (2) questions it is important to understand what a share option is and the terminology surrounding options.

A share option is the right to buy a share or defined quantity of shares, at a specified price (the “exercise price” aka the “strike price”). As the name suggests it is not an obligation to purchase.

There are two varieties of share options namely:

  1. American options, which are the most common form, and allows for the option to be exercised at any time up to a specified date (the “expiration date”); and
  1. European options which allow for the option to only be exercised on the expiration date.

Usually, the options that are granted do not vest immediately and the employee will only be entitled to the options after some time and often over a period of years. The shares are said to have vested on the date which the employee becomes entitled to the beneficial interest in the option, that is, the date the options are exercisable. However, it may be that, pursuant to the agreement between the employer and employee, there are still restrictions on the transfer of the options (e.g. that they cannot be transferred to another person or that they can only be transferred for a specific price). Vested options constitute those options where the vesting criteria have been satisfied (e.g. the specified period of time has passed or the employee remains gainfully employed by the employer) and the employee is able to exercise the option, but has not done so. An option is unvested when the vesting criteria have not yet been met.

The exercise date refers to the date on which the option is exercised, that is, the shares are purchased by the employee that is the subject of the option.

ARE SHARE OPTIONS PROPERTY OR A FINANCIAL RESOURCE?

What is the difference between property and a financial resource?

The Family Law Act 1975 (Cth) (‘the Act’) provides a circular definition of property as “property to which [the parties are jointly or a party of the relationship is] entitled, whether in possession or reversion”. The Act does not define what a financial resource is but it can be considered as a financial benefit that is likely to be given to a party in the future such as impending inheritance under a will, long-service leave entitlements, employment/partnership pension schemes or payment as a beneficiary of a discretionary trust, but is not the property that a party currently has or is not currently entitled to receive.

The consequences of this distinction are that as an asset, the Court has the power to make orders with respect to property (pursuant to sections 79 and 90SM of the Family Law Act 1975 (Cth)). A financial resource however can only be considered when deciding on a just division of the rest of the property. At best it may result in an adjustment of property to the other separating party. Nonetheless how the Court treats share options can be critical when large portions of the net matrimonial pool are tied up as financial resources.

How does the Court characterise share options?

The Full Court of the Family Court in Hurst v Weber (2009) FamCAFC 137 overturned the decision of Federal Magistrate Baumann who treated the unvested share options as a financial resource due to performance hurdles, including remaining employed with the company, which was required in order for the options to vest. The Court determined that they should have been treated as property.

The Court affirmed this view in Nielson & Nielson (2012) FamCA 70 maintaining that employee share options are to be treated as property, not as a financial resource with the value of the property to be ascertained by discounting for various risks. Loughnan J commented that property is not determined by its ability to be sold. Importantly in this case the Husband agreed with the Wife that they were property, but submitted that they should be “treated” as a financial resource. The Court rejected this argument holding that if it is accepted to be property, then it cannot be dealt with in some other way.

Crisford J in Beaton & Ballam [2014] FCWA 20 held that unvested employee share options ought to be treated as a financial resource adopting the reasoning of Ryan J in Beklar & Beklar [2013] FamCA 327. Some factors which point to share units being characterised as a financial resource rather than property include whether they can be sold or dealt with before they vest, whether the holder receives nothing more than dividends on the underlying shares prior to them vesting, and evidence showing that the holder is unlikely to be employed when the share units vest.

The Federal Circuit Court of Australia held in Russel & Russell [2016] FCCA 137 that unvested share options were to be considered a financial resource. In this case, the husband was granted a number of unvested shares over a number of years, however, those shares would only vest and consequently, he would only have the right to sell those shares, three (3) years after they were allocated to him, on the condition that the company satisfied a number of performance indicators.

How share options are characterised by the Family Court remains unsettled. Presently each matter is determined by the facts of the particular case. It is arguable that options that, at the time of the hearing, are free to be exercised and are ‘in the money’ (that is the share price exceeds the exercise price) ought to be treated as property because they have a net value that can be realised (once various adjustments have been made by a valuer).  On the other hand, some factors pointing towards the Court treating share options as a financial resource (assuming they cannot be exercised at the date of the Hearing) include:

  • their value is contingent on the share price exceeding the exercise price at some future time but prior to the expiration date and they are inherently uncertain and unpredictable;
  • they are often contingent on the continuation of employment and/or employee performance targets (that may be affected by forces outside of the employee’s control);
  • there may be restrictions on the transfer of the options;
  • there may be restrictions placed on the sale of the shares once the option is exercised.

Ultimately a careful analysis of the employee share option agreement is required to assist in determining whether they are likely to constitute property or a financial resource for family law purposes.

Also read: What happens to my Self-Managed Superannuation Fund when I separate?

How are share options valued?

The intrinsic value of an option is broadly the difference between the exercise price of the option and the value of the share. For example, the intrinsic value of an option to buy a share for $10 in XYZ Pty Ltd that currently has a share price of $100 is $90. The value of the option lies in the opportunity to take advantage of increases in the share price, hopefully as a result of employee performance, over the period of time before the expiration date.

The longer the period of time until the expiration date the greater the opportunity for the share price to increase and as such the greater the value of the option. As the time period before expiration draws to a close the less prospect there is of an increase in the share price and as such, the total value of the option converges with the intrinsic value. This is known as the time value of an option and will impact any valuation that is undertaken in a determination of the value of a share option in a Family Law matter.

Valuing share options will often require an expert valuation by an accountant and can involve a number of methodologies. Each share option will be different and subject to its own agreement which will need to be examined to determine a valuation.

There are a number of factors that affect the value of the share option including:

  • the underlying value of the share;
  • the exercise price;
  • the time to expiration;
  • the stability and predictability of the share;
  • the risk-free rate;
  • the dividends expected during the life of the option (if any).

In valuing share options a number of discounts are typically applied to account for a range of factors, most fundamentally that they are an uncertain asset that may or may not provide value to the holder at some time in the future. Discounts are also applied for:-

  1. Lack of marketability, that is, the liquidity of the option is low (relevant to unvested options only);
  2. Tax liabilities;
  3. Risk of the holder ceases to be employed before vesting date (usually only if there is some evidence of likelihood of the employee not remaining employed);
  4. Accounting for inflation and the opportunity cost of interest-earning;
  5. Restrictions on transfer;
  6. Performance hurdles that are outside of the option holder’s control;

WHAT ALTERNATIVES ARE THERE IF PARTIES CANNOT AGREE ON HOW TO CHARACTERISE SHARE OPTIONS OR THEIR VALUE

Unfortunately, due to the uncertain nature of how to characterise and value share options, parties in a Family Law property dispute may disagree considerably as to these two (2) issues. The parties can obviously allow the Court to reach a determination, however, in circumstances where they cannot agree and do not want the expense of litigation, there are some other alternatives that should be considered.

Parties may consider a deferred settlement arrangement for unexercised options based on an agreed distribution once the options are exercised and a determinable value is realised. Alternatively, parties can enter into an ongoing maintenance Order, may allow for reimbursements or cash adjustments to be made in the future once the options have been exercised.

In any event, it is clear that the law surrounding share options is not clear and legal advice, as well as the advice of an accountant or forensic valuer, should be obtained.

Doolan Wagner Family Lawyers offer specialist family law advice in St Leonards on Sydney’s North Shore. If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or enquiries@familylawyersdw.com.au to discuss your matter in complete confidence. We have a team of experienced and caring professional family lawyers available to help you in this difficult time.

About the Authors: 

Lisa Wagner is Managing Director & Principal of Doolan Wagner Family Lawyers. Lisa is an Accredited Family Law specialist and a nationally registered Family Dispute Resolution Practitioner. Lisa has close to 30 years’ experience as a specialist family lawyer, experienced litigator and skilful negotiator in all family law matters.

Connect with Lisa on LinkedIn 

Stuart Colderick is a Family Lawyer at Doolan Wagner Family Lawyers. Stuart has experience in a range of complex property and parenting matters both in documenting settlements and to the final hearing stage. Stuart’s meticulous eye for detail and his friendly and caring attitude ensures he diligently supports his clients’ and senior family lawyers of the practice.

Connect with Stuart on LinkedIn

Disclaimer: These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

Trial Separations

Are you thinking of a trial separation?

Have you and your partner or spouse started a trial separation?

Making the decision to separate, whether as a trial or permanently, is not a decision you make lightly. And the steps you take regarding your separation, even a trial separation, can have long-term consequences for you and your family.

 When is a Separation a Separation?

There are 3 elements to separation:

  1. Having an intention to separate. Where one or both parties have decided to separate;
  1. Communicating the intention or wish to separate to the other person. This can be verbally or in writing; and
  1. A change in behaviour such as:

– moving out of the home or moving into separate rooms/parts of the home;

– opening and operating separate bank accounts;

– not sharing meals together;

– not undertaking usual or regular domestic tasks for the benefit of the other person;

– not spending time together in or out of the home;

– advising children, family members, friends and/or other third parties that you have separated, especially if you continue to live in the same home.

Sometimes these 3 elements coincide however this is not always the case as a separation can be gradual over a long period of time. A decision to separate can be formed months or even years before that intention is communicated to the other party or spouse. And a change in behaviour can occur prior to the intention being formed. There are no “textbook” cases in separation. Each relationship is different.

It is important to understand that some parties cannot, or choose not to, physically separate and instead decide to live separately under the one roof with their former partner or spouse. Provided that they can prove the abovementioned 3 elements of separation then they will still be considered to have separated.

 

Things to consider prior to any trial separation

1.Where will you live? Are you going to stay in the home in another room in the home or are you going to move out? There might be very good reasons to leave the home, such as domestic violence or abuse. However if this is not the case and you are not afraid for your safety then deciding to leave the home can have serious consequences down the track for you and your children both financially (including when you are negotiating a property settlement with your former partner or spouse) and in practical terms. Always get expert family law advice before deciding to leave your home.

 

2. Will the trial separation affect the “status quo”? Will existing arrangements change or a new precedent be set? Thinking about the impact that your decisions will have on you and on your children and also on the day-to-day “household finances” is really important.

 

3. What decisions have been made about cash-flow during your trial separation? Have you agreed that your partner or spouse will keep paying some or all of your expenses? What happens if they change their mind once you have commenced the separation? Can you afford to support yourself and your children if necessary? Will the decisions and arrangements you have made before commencing the trial separation still work for you in 12 months time if the separation is not “temporary” after all? On the flip side, if you have agreed to help you partner or spouse pay for their expenses when they move out or when you have a trial separation, will you be able to maintain this promise in the long-term if the separation is not “temporary” after all? What impact will those decisions have on you and your ability to meet your own expenses? What if your partner or spouse is able to work but chooses not to because they don’t “need” to work to meet their own expenses? Will you still feel the same way in 6 or 12 months time?

 

4. If you own property with your partner you should not make any rash decisions about selling it or changing the way in which the property is held on the Certificate of Title. Instead you should have a discussion with an expert family lawyer about what you can do and the ramifications of each option. Put simply, taking these steps may not be a good idea for you in your particular circumstances and can have serious implications for you in the long-term.

 

5. Expect the “dynamic” at home to change. If you remain living in the same home as your partner or spouse during your trial separation you may not be able to tell them what to do and may have to “put up” with their behaviour. This might include them entertaining people in the home that you are not comfortable being around, coming home late or not keeping the home in the state you would like. Alternatively if you leave your home you may not be able to control what happens inside the home other than to request that it be kept in a reasonable state of repair.

 

6. Who are you going to tell about your trial separation? Who you tell and what you tell them can have a significant impact on things down the track, especially for calculating when your separation actually occurred. If you choose to stay in the home and then wish to get divorced you will need to ask a witness to provide an Affidavit outlining what they understand the circumstances of your separation to be.

 

Separation Checklist

Some things you should think about prior to a separation…

 

  1. Collect important documents e.g. birth certificates, marriage certificates and passports and place them in safe keeping. Keep a copy of each document handy – take photos of these documents on your phone if you can.

 

  1. Collect financial documents for yourself and if possible your partner, including:

 

  • Income Tax Returns and Notices of Assessments for the last three (3) financial years;

 

  • Any employment records you have including employment contracts, recent pay slips and records of leave entitlements;

 

  • Bank statements including savings and investment accounts, loan accounts (including personal loans, mortgages) and other liabilities (such as credit cards, store finance, hire purchases, store cards, family loan agreements etc.);

 

  • Share or investment statements and particulars of all shares in any public company;

 

  • Records and statements in relation to any entity that you are “associated” with. For companies this includes Articles of Association, Balance Sheets, Profit and Loss Statements and BAS statements. For trusts this includes Trust Deeds and Financial Statements and details as to whether you are the Appointee, Trustee or any beneficiary;

 

  • Details of any Real Property owned by either of you including the street address, rate notices etc.;

 

  • Details of other property owned by you e.g. motor vehicles (a registration certificate is helpful), tools, machinery and furniture etc. together with an estimate of the value of each. Also particulars of any items disposed of by Sale, Transfer, Assignment or Gift in the period twelve (12) months prior to separation to date;

 

  • Details for any superannuation account or entitlement in which you or your partner have an interest including recent statements for each and the financial accounts in relation to any self-managed superannuation fund; and

 

  • Details of any personal injury claim, inheritance or pending inheritance or other financial resource.

 

  1. Prepare an inventory of furniture in your home and take pictures of things that are difficult to describe. Things may be removed, sold or destroyed when you move out and it helps to know exactly what was there when you moved out as it can be surprisingly hard to recall later on.

 

  1. Open a new bank account and apply for your own separate credit card. Perhaps consider this step with a different bank. Ask for a reasonable credit limit. You don’t have to use it at this stage but it is a helpful safety net if an emergency arises.

 

  1. Find out what redraw facilities are available on your bank accounts and also determine what accounts can be operated by one signatory and what accounts require two or more signatories in order to operate. Consider getting advice about what options you have so as to best preserve assets.

 

  1. Organise a modest cash flow in case of emergency. You might be relying on joint funds in the beginning but you might find that money “disappears” or is depleted more quickly than you originally expected. At other times unknown or unexpected “debts” and “bills” suddenly arise.

 

  1. Remain involved in as much as you can with things your children are doing. Take up opportunities to engage in their lives. Consider speaking to your employer about flexible working arrangements that may be available, even if only in the short term.

 

  1. Compile a list of all people that provide care for your children including doctors, physiotherapists, occupational therapists, paediatricians and the like. Get up to date information about all treatments and obtain copies of all reports.

 

  1. Touch base with your children’s classroom or preschool teacher just to “check-in” and understand better your child’s progress. Stay updated and involved in their school as best you can.

 

  1. Don’t vent on social media sites and be discrete with your posts on Facebook and the like. You don’t want compromising photos of yourself or unflattering comments circulating at this time as they can seriously backfire.

 

  1. Set up a separate confidential email account and change your passwords to any personal email, social media, internet banking and other accounts. It’s a good idea to also restrict access to these accounts from the family computer or other devices accessible by other family members.

 

  1. Try and get expert family law advice. Confidential, no obligation appointments are available at short notice from our friendly and highly experienced specialist team.

 

A trial separation can be a way to allow everyone to feel more comfortable with a new life and adjust to the huge changes that a separation brings. A trial separation can also allow you to test the “reality” of the decision you are about to make. Sometimes people suggest a trial separation as a way of easing the other person into a permanent separation even if they have already firmly decided that the relationship is over.

 

Trial separations can be confusing, very painful and emotionally fraught. And they can wreak havoc on you, your children and your financial security if the road ahead is not very clear.

 

If you are thinking of a trial separation or trying to make decisions about your separation or have recently separated or are currently trialling a separation and don’t know where things stand or need advice about the next steps to take, contact us on 9437 0010 or enquiries@familylawyersdw.com.au to discuss your matter. Doolan Wagner Family Lawyers offer Accredited Family Law Specialists on Sydney’s North Shore who are experts in all areas of family law.