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High Net Worth Divorce
In a high net worth divorce, there are a many issues that can turn an otherwise simple divorce into complex litigation. There are several high net worth financial aspects that need to be identified, examined and thoroughly addressed before a resolution can be accomplished. For example, the following may be applicable to your case:
If a prenuptial agreement was signed prior to your marriage, this agreement needs to be reviewed in detail and the impact that this will have on the resolution of your divorce matter. Many Family Law attorneys do not handle complex divorce matters.
They may not know how ERISA rules relate to a pre-nuptial agreement and may not override the distribution of an ERISA plan. This means that even if you waived your rights to your spouse’s employer-sponsored retirement plan as part of the pre-nuptial agreement prior to marriage, you may still be entitled to a spousal percentage share interest of that very retirement plan. However, if you signed an ERISA form waiving your right to future retirement benefits once the marriage occurs, then you would not be able to collect under the plan. There are other business related and financial considerations that may be contained in a pre-nuptial agreement that may or may not be enforceable. You need to consult with an attorney who understands businesses, financial documents, and retirement plans to discuss your rights under the Pre-Nuptial Agreement and who practices complex divorce matters.
Real estate is usually one of the largest assets in a marital estate. Real estate could include the marital home, investment property, commercial property or a vacation home. Depending upon when the property was married, (either prior to or during the marriage), will determine what part of the property or increase in value of the property is subject to equitable distribution and what, if any portion is exempt from inclusion of the distribution calculation of the marital estate. Your real estate holdings and the timing of when you purchased the real estate must be reviewed to determine what, if any part of the value would be included in marital estate for equitable distribution purposes. If there is an increase of value of a property brought into the marriage (that was not obtained by inheritance), it is important to calculate the increase of value of such property properly.
Closely Held Business, Partnership and Professional Practice Valuations
It is becoming very common for individuals to operate their own businesses or to be partners in a going concern. When a business owner, partner in a business or professional is involved in the divorce process, businesses and/or partnerships need to be valued, including assets, liability and good will. Forensic accountants are needed and possibly actuarial experts need to be involved to provide the most accurate business valuations. The valuation process will typically include a thorough inspection of the business site, records, books, general ledgers, payroll registers, receivables, machinery, inventory, real estate, client lists, partnership interests, enterprise and goodwill. Also, if you owned the business prior to the marriage, it will need to be determined if the business is a marital asset. If it is, then there also needs to be a calculation of your spouse’s share interest in the business.
If you have acquired retirement assets such as a 401k, 403B, IRA, etc., before or during your marriage then these accounts may be subject to equitable distribution in your divorce. A common misconception when going through a divorce is that if the account is maintained in your exclusive name then your spouse has no right to claim a share.
Generally, the value of your retirement account accumulated from the date of the marriage to the date of separation is filed will be subject to equitable division. If the distribution of these retirement accounts occurs while actively contributing to the account after separation, a calculation also needs to be made to determine the value of the retirement account while deducting the post separation contributions. After the values are determined and distribution needs to be made, you will need to deal with the preparation of a Qualified Domestic Relations Order (QDRO), as well as connect with tax advisors, financial specialists and other experts to prepare the QDRO and help you manage your finances, whether you are departing with part of your retirement or acquiring money from the retirement as part of the divorce settlement.
Stock options are also a common part of employment compensation. Stock options create complexities in distributing the assets during a divorce. Your stock options will be analyzed to identify the grant date and vesting schedule to determine which assets are subject to equitable distribution. A settlement agreement may include a constructive trust to address the tax effects of your stock option distribution. It can also safeguard all post-judgment options while still protecting your pre-distribution interests and rights.
If spouses cannot fairly divide the marital property, the court will divide it as fairly as possible. Marital fault is not a consideration in property division. In Pennsylvania, property acquired during the marriage is jointly owned regardless of title. The court considers the duration of the marriage, individual assets and potential for bringing in money, how much each contributed to the marital property, including homemaking, and who will have physical custody of the children.
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