Definitive Guide to Dividing a Business in a Divorce in Arizona
Business Appraisal When Dividing a Business in a Divorce
If you or your spouse own a business, a discussion will come about dividing a business in a divorce in Arizona. Business valuations and appraisals in an Arizona divorce case are necessary when one or both spouses have an ownership interest in a business.
Business evaluations and assessments, however, occur in only a small percentage of divorce cases due to the relatively limited number of business owners compared to the significantly greater number of employed individuals.
So, it is essential your divorce attorney has experience dealing with how a business is divided in a divorce in Arizona.
The court may not only divide the value of the company based upon its value but may also share business profits while the divorce is pending.
If you are going through a divorce and own a business, it is important for you to know how is a business divided in an Arizona divorce. The Arizona Court of Appeals in the case of McCune v. McCune addressed, among other issues, whether a judge should grant a spouse a judgment for his or her community property interest in the other spouse’s business or, instead, should the court just divide the stocks between the parties.
Although there could be situations that justify a different result, most judges favor as clean a division of property as possible to eliminate any business, personal, or legal ties that can lead to future conflict.
As a result, most judges favor awarding all of the stock of a business to one spouse and compensating the other spouse for his or her interest in that business through the division of the parties’ remaining property or entry of judgment.
Dividing an S Corporation in a Divorce in Arizona
Many businesses in a divorce case are S corporations.
These corporations are known as tax pass-through corporations and are not subject to corporate taxes; although the owner pays taxes at his or her personal income tax rate.
The status of a company as an S corporation can affect the value of the company due to the lack of corporate income taxes.
As a result, it is crucial to ensure your family law attorney fully understands the principles and practices of business evaluations and appraisals in the context of a divorce.
Control Over a Business During a Divorce in Arizona
The establishment of the community property interest of a business in a divorce case is critical to both spouses.
Courts will rarely hand over the operation of the business to both spouses as equal owners.
In some cases, a Court may not award each spouse equal ownership in the company.
A court may not assign the business equally to the spouses because other non-related owners of the business have interests that would be affected.
Both spouses typically have a vested interest in completing a business evaluation and appraisal to assign a value to the business.
Specifically, the spouse retaining the company after the divorce has an interest in establishing its value.
Otherwise, the court may order the business interest sold if the court does not receive reasonably reliable evidence of the value of that business at trial.
The non-participating spouse, likewise, has an interest in the business evaluation and appraisal because he or she should expect to receive a fair share of the community property interest in that business.
Community Liens on a Sole and Separate Business in a Divorce in Arizona
The marital community may also acquire an interest in a spouse’s sole and separate business that the spouse owned before marriage.
This interest in the company can occur if the value or income of the business increased during the marriage.
This interest is a community lien against the sole and separate company of one of the spouse’s, subject to a counter-argument called the “fair use” or “fairly compensated” defenses to undermine that community lien claim.
For more in-depth information regarding community liens, as well as the “fair use” and “fairly compensated” defenses to community liens, please review our synopsis of the Arizona Court of Appeals decision in the Potthoff v. Potthoff case.
In the event of a business created and built entirely during the marriage, the community would have an interest in the value of that entire business in most circumstances.
If the company was owned before marriage but increased in value during the marriage, the community may have a community lien against that business.
Common Discounts in Business Appraisal’s in a Divorce
It is incredibly important to understand the various business appraisal methodologies an appraiser may apply. It is also essential to know the different discounts, such as a minority shareholder discount and lack of marketability discount, that may impact the value of the business.
Your attorney must have a good understanding of these methodologies to ensure the business appraisal is not unfair to his or her client.
You should read the Arizona Court of Appeals’ decision in the Schickner v. Schickner case for a more in-depth analysis of discounts in a business appraisal. Both cuts can substantially decrease the final appraised value of the business.
Many divorce attorneys leave it up to the business appraiser to make an income determination related to a business on their own and to make the valuation decisions on their own.
We are very different.
We go through all of the financial statements on our own.
We look at where we may be able to identify hidden income.
We watch the value of the assets.
We make sure those assets are appraised so, for example, if the balance sheet shows a depreciated value of a building that is not reflective of its actual value.
You may need to obtain an appraisal to determine how much that building is worth, as well as the other physical and intellectual property assets of the business.
We go through all of the detail. Being detailed ensures the business appraiser does not miss anything to make sure our clients get the best results possible from that business evaluation.
Business Valuation Methodologies in a Divorce
A business appraiser may adopt many different valuation methodologies; depending upon the purpose of the business appraisal.
An appraiser would use a different valuation method when valuing a business for divorce than he or she would use in an IRS tax case.
Even so, there is not just one business valuation methodology in a divorce case.
Different assessment approaches in an Arizona case can bring about enormous differences in the value of a community business.
Understanding and being able to effectively argue which methodology is best for each client requires your attorney to understand the methods used to appraise a business in an Arizona divorce.
In a nutshell, two primary valuation approaches are used by business appraisers in a divorce in Arizona.
Specifically, the Fair Market Value approach and the Fair Value approach.
The Business Appraisal Process in an Arizona Divorce
Understanding the process of determining the value of a business is critical in a divorce.
Also, understanding the numerous factors and the different valuation methodologies that will increase or decrease that assessment, is essential to representing a spouse’s financial interests in a divorce.
The business evaluation and appraisal process are essential.
These processes establish the owner’s income from the business. Incomes help to determine child support and spousal maintenance.
A spouse may believe he or she knows the value of his or her own company.
However, a court may give little to no weight to the owner’s opinion regarding the value of his or her company.
Most judges tend to believe the owner has an inherent bias to undervalue the business.
Frequently, the factors impacting the business evaluation and appraisal are not readily apparent.
Those factors may have even been unknown or overlooked by the business owner.
The business appraiser may need to uncover those unknown factors affecting the appraisal of the business.
Retaining a divorce lawyer who understands the intricacies of proper business evaluations and appraisals is, therefore, critical to ensuring a fair and accurate assessment of the value and income derived from a business.
Other factors may also significantly affect the value of a business in a business evaluation and appraisal, including the following:
- The condition of the economy as a whole;
- The health of the industry in which the company operates;
- The status of competitors in the same industry; and
- The ability of the company to access capital or debt to expand or even maintain operations;
A thorough business evaluation and an appraisal are essential to determining the value of a business in a divorce.
The assessment ensures the fair distribution of the company as a marital asset.
An appraisal also makes sure child support and spousal maintenance calculations are using accurate income figures.
You should also be aware the court may also divide the profits of the business produced by the company during the pendency of the divorce case, depending upon the particular factors that apply.
“Fair Market Value” Standard of value when Appraising a Business During an Arizona Divorce
The United States Federal Code of Regulations defines the Fair Market Value method as “the net amount which a willing purchaser, whether an individual or a corporation, would pay for the interest to a willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of relevant facts.”
It is important to note that the concept of the term “market” in “fair market value” does not depend upon what a particular buyer may offer to pay for the business.
This approach excludes consideration of other buyers willing to pay more or less for the company if the business was placed on the market for sale and exposed to all potential purchasers of the business.
The fair market value approach also precludes consideration of any special selling financial arrangements used to secure the sale of the business.
Special financial arrangements could include creative financing options.
Special provisions could also include other concessions agreed upon by the business owner and a prospective purchaser of the property.
These concessions artificially decrease or increase the actual real market value of the business.
It is also essential to understand you may argue fair market value is designed to find the highest amount of the business.
Whereas, the most probable sale price includes the highest and best use of the company even if the current owner of the business may not be taking advantage of those other opportunities.
These differing approaches can pose a significant problem in a divorce.
The valuation of the business is driven higher than the current income supports because of opportunities the present owner of the business has not pursued.
One of the more significant impacts a “fair market value” approach may have is from the potential application of lack of marketability or minority shareholder discounts.
These discounts can decrease the value of the business between 10% to 30% or more.
The “lack of marketability” discount assumes a small business is less marketable.
Since it is less marketable, it is worth less than a publically traded corporation.
The “minority shareholder” discount is applied when the spouse has less than 51% of the shares of the company and also lacks authority or control over the business in the corporate bylaws.
It is applied based upon the presumption that someone purchasing that share of the business would pay less because he or she has no control over the major business decisions.
“Fair Value” Standard of Value Method of Appraising a Business During an Arizona Divorce
The “fair method” approach to valuation of a business as community property in Arizona is that it does provide for “lack of marketability” or “minority shareholder” discounts.
Excluding those discounts from the valuation process, therefore, increases the value of the business over a fair market value approach.
The Arizona Legislature passed a statute that applied to “dissenters rights” cases.
Dissenters rights cases involve shareholders who lack control over an Arizona corporation.
They also disagree with a decision made by the company.
As a result, they want to sell their shares back to the corporation.
The statute applies to protect minority shareholders based upon corporate decisions, which are out of the minority shareholders’ control.
“Fair Market Value” vs. “Fair Value” Standard of Value of a Business in an Arizona Divorce
The million-dollar question, therefore, is whether it is appropriate to use “fair market value” or a “fair value” approach in assessing the value of a business in an Arizona divorce.
There is no single clear answer to this question.
Judges have broad discretion to apply the valuation methodology he or she believes results in the more fair and equitable outcome.
Also, the facts of each case relating to a community property business are different and may lead to a judge favoring one methodology over the other.
Having an experienced divorce attorney is imperative to make the arguments that will most fairly and equitably apply to your case.
Choosing the Valuation Date for Valuation of a Business During an Arizona Divorce
Parties in a divorce have to pick a valuation date for the assessment of the business.
The reason a valuation date is necessary is that a business appraiser must look at the specific economic and market conditions applicable to the company to include in his or her appraisal.
The latest housing market crash provides a great example.
After that market crash, we heard statements like “wow, I could have made hundreds of thousands of dollars if I had sold my home a year ago.”
The economic and market conditions that existed in the past are not relevant to a business appraiser.
Prior or potential future economic or market conditions have nothing to do with the value of a business today.
That is because it does not represent the current “fair market value” that exists today.
“Premise of Value” in a Business Valuation During an Arizona Divorce
Choosing the correct “premise of value” will also materially affect the cost of a business during a divorce in Arizona.
The appraiser will either be told by the parties or the court to apply a particular “premise of value.”
The appraiser may elect or be directed to provide appraisals of the business based upon all possible “premises of value.” Attorneys must present evidence and arguments to the court to decide the fairest and equitable “premise of value” to apply.
The four premises of value Arizona court’s may apply to a business appraisal in a divorce case are the “going concern premise,” “value of the assets premise,” “value of the sale of the assets premise,” “value of the assets in an expedited liquidation premise.”
Let’s cover each of these concepts individually.
The “going concern premise” assumes the business will continue operating.
The appraiser will not only value the physical and intellectual property assets will be valued, as well as the profits of the company, in determining the value of the business.
The “going concern” approach typically results in the highest value for a business in an Arizona divorce.
The “value of the assets premise” is the value of the property without any consideration of the income those assets may be able to produce and does not contemplate the sale of the property.
The “value of the sale of the asset premise” is the value of property placed on the market for sale.
It does not assume any particular deadline for sale.
However, sufficient market time is provided for a suitable buyer to purchase the property at their real value.
The “value of the property in an expedited liquidation premise” assumes the assets are sold in a short time frame.
This premise does not provide suitable time on the market to maximize the sale of the asset.
This approach results in expected lower sales prices received for the assets.
You could compare this to the proverbial “fire sale.”
The premise of value in a divorce case is typically a “going concern” premise unless the business is failing, and another assumption is more appropriate.
The premise may be “value of the assets in an expedited liquidation” if the carrying costs are causing a large cash drain.
You should also be aware that different premises of value may be applied by a business appraiser on the same business depending upon the circumstances.
For example, the appraiser may use the “going concern” valuation methodology for the business operations.
However, the appraiser may use a “value of the sale of the assets” premise for equipment that may not be deemed necessary to the functioning of the business.
For example, the corporate jet may be subject to the “value of the sale of the asset” premise if the business owner completes all of his business operations in town.
If you have questions about dividing a business in a divorce in Arizona, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona community property and family law attorneys have over 100 years of combined experience successfully representing clients in community property and family law cases.
Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.
Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your community property or family law case around today.
More Articles About Dividing a Business During a Divorce in Arizona
- Divide Business Profits During an Arizona Divorce
- How is a Business Divided in an Arizona Divorce
- Minority Discount in Business Valuation in Arizona
Chris Hildebrand wrote the information on this page about dividing a business in a divorce in Arizona to ensure everyone has access to information about community property laws in Arizona. Chris is a family law attorney at Hildebrand Law, PC. He has over 24 years of Arizona family law experience and has received multiple awards, including US News and World Report “Top Arizona Divorce Attorneys,” Phoenix Magazine “Top Divorce Law Firms,” and Arizona Foothills Magazine “Best of the Valley” award. The procedures he uses to get his clients through a divorce are based upon principles of honesty and integrity. Chris and his staff care about what their clients are going through in a divorce.
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