Employee Benefits and Divorce

Many companies compensate employees with stock awards, stock option, annual bonuses, and other such items. To the extent these employee benefits, or even a portion of them, are attributable to employment by that company during marriage, then that portion is community property subject to division at time of divorce. Normally there is a vesting period for the incentive-type compensation of stock awards and stock options. At time of divorce these items may be unvested, but they are still divisible as a part of the division of the community estate. The spouse to whom these awards were made is under no obligation to continue employment at that company until after the awards have vested. For that reason, it is not unusual for the non-employee spouse to consider taking a discounted amount of cash at time of divorce in exchange for the employee spouse’s receiving 100% of the interest in the incentive awards. If the options or stock awards are divided, there is a procedure for determining the community property portion of the awards, factoring out the time the employee spouse works for the company after divorce. That portion is not divisible. Annual bonuses often are not paid until the first quarter of the year after they were earned. The divorce decree can include provisions calling for the employee spouse to pay the established portion of the bonus to the other spouse when it is received. This type of asset can also be divided pro rata to reflect whatever percentage of it is attributable to the portion of the year during which the parties were married. For example, if a couple divorces at the end of October, then 10/12th of the bonus for that year will be community property subject to division when the bonus is paid. Federal income taxes must always be considered in the division of stock awards and options and bonuses, and all other types of compensation the employee spouse may receive for services rendered during marriage. Provisions for the allocation of the tax obligation should be included in the divorce decree. Certain professions, such as insurance sales, yield income year after year for a policy sold during marriage. Certain professions, such as personal injury law, may not produce income until a year or more after the work is done. Even crops not harvested and sold until after divorce may result in income attributable to the community time, toil and effort of one of the divorced spouses, and thus divisible as community property. The proceeds of a winning lottery ticket bought during marriage is most likely community property subject to division at divorce. The possibilities are many.