Written by attorney Allen F. Harris

Dividing Stock Options in Georgia Divorces

Employee stock options may constitute a significant marital asset. The options may be considered vested or unvested. The issues for determination are whether the options are martial property and what the value is. In some instances, the transfer from the employee spouse to the non-employee spouse may be restricted. Of course if they are marital, one alternative is simply to exchange them for an equal value in some other marital asset. In determining whether the stock options are marital, you will want to determine when the options were (1) awarded; (2) vested; and (3) exercised, if in fact they have been exercised. The options may have been awarded and vested prior to the marriage but may have been exercised during the marriage with marital funds. The options may have been awarded prior to the marriage but vested during the marriage. Stock options may be awarded during the marriage and vest either during or after the marriage. In Georgia, of course the general rule is that property is subject to equitable division if it is " ' acquired as a direct result of the labor and investments of the parties during the marriage....' " Payson v. Payson, 274 Ga. 231, 552 S.E.2d 839 (2001). This rule applies to stock options as well as to other types of property. Thus, the date the stock options were awarded or the date that they vested may not determine whether the property is considered marital or separate. The trial court is required to look at the evidence and determine whether the vesting of the stock options was the direct result of the parties' labors and investments during the marriage. Newman v. Patton, 286 Ga. 805, 692 S.E.2d 322 (2010). . If stock options awarded prior to the marriage vest because of efforts made by either party during the course of the marriage, then they are marital assets; otherwise, they are separate property. Newman v. Patton, 692 S.E.2d at 324. A multitude of factors may determine whether stock options are to be considered marital including whether the marital or premarital funds were used to exercise the options and the employer's purpose for granting the option (i.e., for past, present or future service) Newman v. Patton, 692 S.E.2d at 324. The fact that the stock options vest during the marriage is not determinative in and of itself of whether the options constitute a marital asset. Newman v. Patton, 692 S.E.2d at 324 citing Dasher,supra, 283 Ga. at 436, 658 S.E.2d 571 (" Property does not become a marital asset simply because one of the spouses obtains it during the course of the marriage." ). When a portion of stock options are marital, a quantitative formula is used to compute the precise share or ratio of the option that will be designated marital. This formula - the coverture factor or time rule formula - is a calculation to determine the portion of an entire option that covers the period of the marriage. Time rule formulas are used for options, as in pension cases, when a property is acquired in exchange for an employee's service that includes service both during and before or after the marriage. Thus, the court must compute the period during which an employee's service covers the marital period and segregate the separately acquired interest. Newman v. Patton, 692 S.E.2d at 325 note 5 citing Tracy Thomas, The New Marital Property of Employee Stock Options, 35 Family Law Quarterly 497, 514 (2001).

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