When a marriage ends, the spouses will need to divide their marital property. This can be a complex process, especially when it involves an interest in a business. Experts often are required to assess the value of the business, and its tangible and intangible assets. Tangible assets include cash, inventory, equipment, and other physical items related to the management and operation of the business. Intangible assets might include goodwill, rights assigned by contracts, and rights to trademarks, patents, or copyrights associated with the business.
Even if you are not pursuing a share of the business during the divorce, you may still want to have the business valued to establish your spouse’s assets and help make the case for other awards, such as spousal and child support.
Since the appraisal of assets is a subjective process, each spouse often chooses a separate expert to present the argument that best suits his or her goals. These experts will present their findings to the court as testimony in a divorce proceeding. The judge then must decide which expert’s approach is more convincing in this specific situation, unless the spouses agree on a method that satisfies both of them.
Approaches to Valuing a Business
There are three main ways to value the assets of a business during a divorce proceeding: the income approach, the asset approach, and the market approach. Any of these approaches may be the best way to value a certain business, but each has drawbacks.
The income approach tries to assess the anticipated economic benefits of a business while discounting for the risk that those future benefits will not be received. A business appraiser or other expert can examine past financial data from the business and make adjustments to project what might happen in the future. A controlling shareholder of a business may get more compensation than the open market would provide, so the expert will need to set an appropriate amount of compensation for that person’s position and responsibilities. This approach is the most commonly used way to value an interest in a private business.
What’s a Business Worth?
In order to divide a business you must first figure out its value. You can:
Use an income approach, which assesses anticipated economic benefits of a business while discounting for the risk that those future benefits will not be received.
Use an asset approach, which consists of assigning a total value to the tangible and intangible assets of a business and assigning a total value to its liabilities. The liabilities are then subtracted from the assets.
Use a market approach, which tries to compare the business that must be divided to similar businesses that have been sold.
The asset approach consists of assigning a total value to the tangible and intangible assets of a business and assigning a total value to its liabilities. The liabilities are then subtracted from the assets. This can be challenging because many intangible assets are not easily valued and may not even be recorded. Furthermore, some assets may not have the same value to a business that they would in an open market. This method is most effective if the business is very small or based around investments. When a business has not yet accumulated significant goodwill, the asset approach can be especially accurate.
Finally, the market approach tries to compare the business that must be divided to similar businesses that have been sold. Similar to real estate appraisals, this method is based on the idea that recent transactions are the best way to evaluate what a business is actually worth in the current market. Despite its intuitive logic, the market approach is not always easy to apply. Many small, privately held businesses are not truly comparable to large public companies in terms of sales and profits. Transactions involving those businesses thus have a much broader sweep and may cause an expert using this approach to value a privately held company too highly.
Professional Practices and Goodwill
In valuing professional practices, such as those of doctors or lawyers, courts or experts may factor in the value of goodwill. Goodwill generally describes the value of the repeat and word-of-mouth business that stems from the business’ reputation in the community. A business’ goodwill value may be derived from a mathematical formula, although some courts prefer not to take goodwill into account or only consider it a small factor in valuing the business.
The Marital Effort Rule
When it comes time to divide the value of a business between spouses, some courts employ the marital effort rule. This rule essentially requires that the judge consider one spouse’s significant effort in building or maintaining the value of the business during the marriage a marital effort. The reasoning behind the rule is that the other spouse’s support of the owner spouse and their marriage made it possible for the owner spouse to put so much effort into the business. If the marital effort rule applies, even a spouse who did not own or work for the business may nonetheless be entitled to a share.
What Happens to the Business?
Divorcing spouses generally have three options for dealing with a business in a divorce:
1Have one spouse buy out the other’s share
2Sell the business to a third party
3Continue to co-own the business
Much can be at stake in valuing a business during a divorce proceeding. The business often is the most valuable component of the marital property being divided between the spouses. You should make sure to seek the legal and other professional guidance that you need to protect your rights to your interest in the business.