The issue of active and passive appreciation of business assets in a divorce context is growing in prevalence. A noteworthy Florida ruling further explores the scope of appreciation: Does a nonowner spouse have a claim to the increased value of all nonmarital assets without showing marital effort or the use of marital assets to achieve the appreciation?
‘Middle manager’ in a company: In this case, the husband did not own a business. Instead, before the marriage, he began working for a company and, at that time, also bought a large number of company stock by way of a bank loan. During his tenure at the company he had some supervisory responsibility, but also had a couple of demotions. When he was terminated, his stock was liquidated. The shares sold for substantially more than the outstanding balance on the loan used to buy them.
The trial court determined the stock was separate property and its increase in appreciation was passive; it was, therefore, not subject to marital distribution. The wife appealed the ruling. It seems she asked the appeals court to adopt a rule “that all appreciation of the stock of a company for which a spouse works is a marital asset.” The Court of Appeal rejected the proposition.
Under the existing analytical framework, the court said, the increased value of stock from a company for which the owning spouse works can be a marital asset and subject to distribution. But, it can also be a nonmarital asset. The crux of the matter is "whether the husband exerted the sort of ‘effort’ required to move the appreciation value from the nonmarital category to the marital one,” the court explained.
Cases that have found the appreciation was a marital asset typically involve a family-owned business in which the stock-owning spouse holds a significant position. Here, neither of these “key features" was present, the court found. The company the husband worked for was not owned or operated by his family. He held no significant managerial position in the company; at most, he was a “middle manager.” He did not contribute to the appreciation in the value of his stock, and his wife had no right to any part of the stock’s increased value.
Takeaway: Under Florida law, whether the appreciation in the value of nonmarital assets, particularly stock in a company, qualifies as a marital asset depends on both the nature of the company the stock-owning spouse works for and the position he or she holds in that company. In other words, the issue is whether the owner spouse can switch the appreciation from the passive to active column.
Find an extended discussion of Witt-Bahls v. Bahls, 2016 Fla. App. LEXIS 1451 (Feb. 3, 2016) in the May issue of Business Valuation Update; the court’s opinion will be available soon at BVLaw.