The expertise and competence of an expert will often have a significant impact on final settlement or trial results. The importance of the role played by an expert in a divorce cannot be over-emphasized. In some divorces, the value of an expert can exceed that of the divorce lawyer. Experts should be retained at the commencement of a divorce, and not after a potential settlement has fallen apart. The expert’s input should be sought before any offers are made or responded to. Early retention of a divorce valuation expert can be critical in the crafting and development of settlement offers, case strategy, and the game plan.

As with Orange County divorce lawyers, all valuation experts are not created equal. It is difficult to quantify the value of the right experts in a divorce. The reputation of an expert is critical to the weight given to an expert by the judge. An unqualified expert may not qualify as an expert in a divorce trial, which would prevent them from testifying. Such a result could be devastating to the outcome of the divorce, as the lawyer would not be able to present evidence of the valuation of the business interest to the divorce court.

Another approach, Van Camp (IRMO Van Camp), gives the community a right to reimbursement equal to any under-compensation of the owner-spouse during the marriage, and assigns the remainder of any increase in value to the separate property of the owner-spouse.

Any sums paid, during the marriage, by the separate property business to or for the benefit of the community may be deducted from the reimbursement owed by the separate property business to the community for under-compensation under the Van Camp approach. For example, if the separate property business had contributed $1,000,000 to the community during the marriage, over and above the sums paid to the operator-spouse as compensation, and the amount of under-compensation was $1,100,000, the separate property business would be required to reimburse the community $100,000.

The amount owed to the community under either theory is a right to reimbursement and not an interest in the business itself (Patrick v. Alacer Corp. (Patrick I) and Patrick v. Alacer Corp. (Patrick II)).

Application of either of these theories requires a determination of the value of the business on the date of marriage, and on the date of separation.

If a capitalization approach is utilized, the excess earnings are multiplied by a ‘multiplier’ or divided by the capitalization rate.

The multiplier/capitalization rate relates directly to the risk of the investment. The riskier the business/industry the lower the multiplier. Consider the case of two businesses, one risky and one secure, each with $50,000 of excess earnings. An investor may only be willing to pay one times earning for the goodwill of the riskier business ($50,000) because the business is less likely to continually return the excess earnings to the investor. Alternatively, an investor may be willing to pay three times earnings for the goodwill of the more secure business ($150,000), because the business is more likely to return those excess earnings to the buyer for an extended period.

Other Factors

As in valuations that are performed in other contexts, collectability of accounts receivable, barriers to entry, management team depth, pending legislation, toxic waste, new competitors, minority discounts, bank covenants and many other issues may be relevant.

There is a presumption that an asset acquired during the marriage is community property. This idea generally applies to the acquisition of a business. However, if a business is acquired prior to the date of the marriage it is the separate property of the owner-spouse.

If the business increases in value during the marriage, the community may be entitled to reimbursement of a portion of that increase. It is clear that the rents, issues, and profits of a separate property asset are the separate property of the owner-spouse. The natural improvement of separate property during the marriage retains its separate property status (IRMO Ney). A change in the form of a business (sole proprietorship to a corporation) does not cause a business to lose its separate property status (IRMO Koester). But, if the increase in value is due, in part, to the effort of a spouse, the community may need reimbursement from the business.

Any reimbursement to the community is based upon the equitable principle that a separate property business is required to repay the community for any uncompensated community effort expended on the separate property business during the marriage. Reimbursement is determined by using one of several different theories or approaches.

In determining the value of a business in a divorce, the court may consider the value of a business that was agreed to in a partnership agreement, but are not bound to value the business interest using that value. The value set forth in such an agreement is not controlling on the divorce court (IRMO Slater).

There are a number of issues that a divorce court looks to in resolving this issue. If a spousal consent was executed, the court will determine whether the agreement was executed by the non-operating spouse with the knowledge that the value being agreed to, would establish a value for the business interest in a future divorce. Whether the non-operating spouse was represented by a lawyer at the time of the execution of the agreement can be critical in the analysis. The terms of the agreement may be binding on the partners/shareholders, but not be binding on the non-operating spouse.

If the owner-operator was paid adequate and reasonable compensation during the marriage, there will be no reimbursement to the community under the Van Camp approach. If the owner-operator was under-compensated but the business distributions used for community expenses exceeded the amount of the under-compensation, the community will likewise not be entitled to any reimbursement.Using the Pereira approach, the owner-operator of the separate property business receives an investment rate of return on the value of his or her business as it existed on the date of marriage, and the remaining portion of the increase in value is reimbursed to the community.