In re Valence

DALIANIS, J.,

dissenting. The first issue raised in this appeal is whether the trial court erroneously included the respondent’s unvested stock options granted during the marriage in the marital estate. I believe that inclusion of these unvested stock options in the marital estate was correct as a matter of law.

*671RSA 458:16-a, I (Supp. 2001) provides that “all tangible and intangible property and assets, real or personal, belonging to either or both parties, whether title to the property is held in the name of either or both parties” is included in the marital estate and is subject to equitable distribution. The statute specifically provides that intangible property “includes, but is not limited to, employment benefits, vested and non-vested pension or other retirement benefits or savings plans.” Id.

Although the statute does not expressly refer to stock options, either vested or unvested, I believe that the reference to “intangible property” which includes “employment benefits” is sufficient to bring unvested stock options within its purview. As the Massachusetts Supreme Judicial Court explained in Baccanti v. Montan, 752 N.E.2d 718, 726 (Mass. 2001):

In their simplest form, stock options are another way for employers to compensate their employees____The fact that the options will vest in the future (even after dissolution of the marriage) is no different from unvested retirement benefits, and we have held that unvested retirement (including pension) benefits are assets that may be included when dividing the marital estate.

See Halliday v. Halliday, 134 N.H. 388, 391 (1991) (“a pension interest is property subject to equitable distribution notwithstanding the fact that it is not vested”). As we explained in Halliday, in connection with pensions, “[t]he fact that a pension is without present value, or that such value is de minimis, may be taken into account under subparagraph (o) of paragraph II [of RSA 458:16-a]” but is not a permissible reason to exclude it from the marital estate. Id.; see also Flaherty v. Flaherty, 138 N.H. 337, 340 (1994) (remainder interest in trust that has value only in the future does not prevent inclusion of the interest in the marital assets). Similarly, that an unvested stock option is without present value does not exclude it from the marital estate, although the trial court may take this into account when dividing the estate between the divorcing parties.

The majority implies that the unvested stock options were “acquired in part before and in part after” the parties’ marriage was dissolved. I disagree with this description. In my view, the options were “acquired” when they were granted. Stock options are like other forms of deferred compensation, see Fisher v. Fisher, 769 A.2d 1165, 1168 (Pa. 2001), and whether vested or not, are an economic resource to which a value may be attributed. See Chen v. Chen, 416 N.W.2d 661, 663 (Wis. Ct. App. 1987) (stock option is enforceable contractual right). Because all of the options at issue were granted during the marriage, they were “acquired” during the marriage as well. See Green v. Green, 494 A.2d 721, 728 (Md. Ct. Spec. *672App. 1985); see also In the Matter of Preston and Preston, 147 N.H. 48, 52 (2001) (settlement of personal injury claim providing monthly payments to begin four years after parties separated was marital asset subject to equitable distribution).

The majority adopts a “time-based” formula to determine the extent to which unvested stock options may be included within the marital estate, reasoning that the formula is required because the stock options at issue “may have been a reward for past services, an incentive for future services, or a combination of both.”

New Hampshire law does not mandate the use of this formula, however. Unlike other jurisdictions, New Hampshire law requires that all property of the parties be deemed part of the marital estate “without regard to title, or to when or how acquired.” In the Matter of Preston and Preston, 147 N.H. at 49 (quotation omitted). I believe that under New Hampshire law, unvested stock options, like any other property to which a spouse holds title, must be considered part of the marital estate even if given, in part, for services to be performed after the marriage has dissolved. See id. (settlement award is marital property “regardless of the underlying purpose of the award or the loss it is meant to replace” (quotation omitted)). In my view, New Hampshire law dictates that we join the minority of jurisdictions that include all unvested stock options granted during the marriage in the marital estate, regardless of the purpose for which they were granted. See, e.g., Fisher, 769 A.2d at 1168-69; Chen, 416 N.W.2d at 663.

Requiring use of the “time-based” formula conflicts with the generally broad discretion given to trial courts to distribute property equitably upon divorce. See Bursey v. Bursey, 145 N.H. 283, 285 (2000). Even those States that have approved the “time-based” formula do not require it in all cases. As the California Court of Appeals stressed in In re Marriage of Hug, 201 Cal. Rptr. 676, 685 (Ct. App. 1984), “no single rule or formula is applicable to every dissolution case involving employee stock options.”

Moreover, the formula is premised upon an assumption that is inapplicable to New Hampshire divorce law. The purpose of the formula approved by the California Court of Appeals in Hug was to allocate between the community property interest in the stock options and the separate property interest in the options. Id. at 678. Under California law, the community’s share of property interests reflects “the extent of the community effort” in earning the property at issue. Id. at 684. Since Hug, other community property jurisdictions have approved of the “time-based” formula. See, e.g., In re Marriage of Short, 890 P.2d 12, 15-16 (Wash. 1995).

Jurisdictions that are not community property jurisdictions have also approved of the “time-based” formula. These jurisdictions also seek to *673divide property upon divorce so that it reflects the extent of the joint effort of the spouses in acquiring the property. See, e.g., Davidson v. Davidson, 578 N.W.2d 848, 854 (Neb. 1998) (property in marital estate includes only that which is “accumulated and acquired during the marriage through the joint efforts of the parties”); Pascale v. Pascale, 660 A.2d 485, 498 (N.J. 1995) (focus in case involving distribution of wife’s stock options was on “whether the nature of the asset is one that is the result of efforts put forth during the marriage by the spouses jointly, making it subject to equitable distribution” (quotation omitted)); Baccanti, 752 N.E.2d at 728 (purpose of dividing property under Massachusetts statute is to “recognize and equitably recompense the parties’ joint efforts in obtaining and maintaining marital assets” (quotation omitted)).

In New Hampshire, the equitable division of property need not reflect the parties’ joint efforts in obtaining or maintaining a marital asset. See RSA 458:16-a, II (Supp. 2001). The “actions of either party during the marriage which contributed to the growth or diminution in value of property owned by either or both of the parties” is but one of several factors that the court may consider when deciding that an equal division of property is not equitable under the circumstances. See RSA 458:16-a, 11(f). Accordingly, I would not require trial courts in New Hampshire to subject to equitable distribution only that portion of the unvested stock options attributable to the option holder’s efforts during the marriage.

The respondent argues that the “time-based” formula is mandated because it is similar to the approach we have used with pensions. With respect to pensions, we have carved out a special exception to the general rule that leaves distribution of marital assets to the trial court’s “sound” discretion. Holliday v. Holliday, 139 N.H. 213, 216, 217 (1994). We have ruled that the trial court must apportion only those pension benefits that are attributable to the retiree’s employment during the marriage. See Hillebrand v. Hillebrand, 130 N.H. 520, 525 (1988). To determine this, the trial court usually should divide the number of months the retiree was employed during the marriage and prior to commencement of the divorce proceedings by the total number of months of credits he will have earned toward his pension as of the date benefits commence. Id. We have ruled that trial courts may deviate from this formula “[o]nly under unusual circumstances.” Rothbart, v. Rolhbart, 141 N.H. 71, 76 (1996).

The respondent argues that because pension benefits and stock options are similar, we should create a similar special exception for unvested stock options. I believe that to do so is error. We created the special exception for pension benefits before the New Hampshire legislature enacted RSA 458:16-a, which, for the first time, defined the property subject to equitable distribution in a divorce proceeding. See Holliday, 134 N.H. at 391; *674Blanchard, v. Blanchard, 133 N.H. 427, 430 (1990). While we have continued to adhere to these rulings under stare decisis, I see no reason to extend them to unvested stock options.

Additionally, I believe that the facts of this particular case do not militate in favor of creating the special exception the respondent seeks. According to the respondent’s own testimony, the stock options were granted to him annually based upon his work performance for the prior year. They were thus given as compensation for services rendered during, not after, the marriage. Similarly, the number of options granted to the respondent, and their exercise price, were all established during, not after, the marriage. The primary benefit of the options — their exercise price — was thus obtained by the respondent during the marriage. Any fluctuation in value or gain to be realized would be a function of market conditions, not the respondent’s future work performance.

The second issue raised in this appeal is whether the trial court’s division of the unvested stock options was a clearly unsustainable exercise of its discretion. See Preston, 780 A.2d at 1287; cf. State v. Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable exercise of discretion standard). I believe that its method of distributing the unvested stock options was sustainable, and, thus, should be affirmed.

The trial court distributed the stock options as follows. With respect to the vested options, the respondent was required to pay the petitioner “the net proceeds” of sixty-five percent of his vested stock options earned by him to the date of the decree, “less any taxes payable, fees, commission or other related costs incurred by him upon exercising those options.”

With respect to the unvested options, the court required the respondent to pay to the petitioner

the net proceeds, less any taxes payable, fees, commissions, or other related costs incurred by him upon exercising those [stock] options granted up to and including the grant in the year 2000 ..., sixty-five percent (65%) of his unvested options that vested in 1999 and sixty-five percent (65%) of the unvested options that will vest in the years 2000, 2001, 2002, 2003 and 2004.

The court deemed any stock options earned by the respondent after the date of the decree to be the respondent’s separate property.

The court gave the petitioner the choice of obtaining her interest in the stock options either through an immediate transfer of them or when the respondent exercised the options. I believe that the first alternative was error because it appears that the stock options themselves are not transferable.

*675The court’s second alternative, however, is an approved method for valuing and distributing stock options upon divorce, sometimes referred to as the “if and when received” valuation method. See Baceanti, 752 N.E.2d at 731. Under this method, the court determines the percentage of the proceeds from the stock options (stock or cash received from the sale of the stock) due the spouse if and when the options vest and are exercised. See id.; see also Annotation, Divorce and Separation: Treatment of Stock Options for Purposes of Dividing Marital Property, 46 A.L.R. 4TH 640, 657 (1986); Kindregan, Unexercised Stock Options and Marital Dissolution, 34 SUFFOLK U.L. Rev. 227, 234-35 (2001).

The trial court’s use of the “if and when received” valuation method was consistent with its broad discretion to divide property between divorcing spouses. See Rothbart, 141 N.H. at 74-75 (discussing use of similar method in pension cases); Baceanti, 752 N.E.2d at 731-32 (approving trial court’s use of “if and when received” method for dividing unvested stock options as consistent with court’s broad discretion). As we explained in Hodgins v. Hodgins, 126 N.H. 711 (1985), with respect to pensions, the problem of valuation “may be avoided, and the risks of uncertainty evenly placed upon the parties, by a decree providing that upon maturity of the pension rights the recipient pay a portion of each payment received to his or her former spouse.” Id. at 716 (quotation omitted). Similarly, in the context of dividing unvested stock options, a court may permissibly avoid the problem of valuation by providing that upon exercise of the stock option, the option holder pay a portion of the net gain (if any) to his or her former spouse. As the court explained in Baceanti, “[although a present division of assets is generally preferable, if present valuation is uncertain or impractical, as it often will be with unvested stock options, the better practice is to order that any future recovery or payment be divided, if and when received, according to a formula fixed in the property assignment.” Baceanti, 752 N.E.2d at 731 (quotation omitted).

For all of the above reasons, I respectfully dissent.