Modern Family Matters

Best Practices for Negotiating Business Ownership During a Divorce

November 16, 2020 with CPA, Darren Hall Season 1 Episode 18
Modern Family Matters
Best Practices for Negotiating Business Ownership During a Divorce
Show Notes Transcript

If you’re a business owner who is going through a divorce, the first step of the process is to determine the value of your business. There are three different approaches utilized in the valuation of a business by professional valuation analysts: the asset approach, the market approach, or the income approach.

There are two different types of engagements that a valuation analyst will employ. There's what's called a valuation engagement, and there's what's called a calculation engagement. These approaches, and the scenarios that rationalize their use, are very different.

In any divorce, you’re looking at all the assets that exist so that they can be distributed fairly, generally 50/50. When deciding how to negotiate business interests, you’ll consider the worth of all combined assets, the role that each spouse plays in the business and wants to continue to play in the business, and begin negotiations from there to ensure a fair division. This process can vary greatly from couple to couple. Couples will want to consider the basis, and thus taxability, of all assets before making agreements.

When navigating a divorce with a business, it’s important to speak with a professional about how you can utilize certain tax laws to your benefit. A CPA will be able to advice you on how to do this.

 If you would like to speak with one of our family law attorneys regarding your unique family law matter, please call our office at (503) 227-0200 or visit our website at to schedule a free consultation.

If you have questions for Darren Hall, CPA, regarding this topic, you can email him at [email protected], or you can call him at (503) 233-1133, and he’ll be happy to assist you.


Welcome to Modern Family Matters, a podcast hosted by Steve Altishin, our Director of Client Partnerships here at Landerholm Family Law. We are devoted to exploring topics within the realm of family law that matter most to you. Our discussions will cover a wide range of both legal and personal issues that accompany family law matters. We strongly believe that life events such as marriages, divorces, re-marriages, births, adoptions, children, growing up, growing older, illnesses and deaths do not dissolve a family. Rather, they provide the opportunity to reconfigure and strengthened family dynamics in healthy and positive ways. With expertise from qualified attorneys and professional guests, we hope that our podcasts will help provide answers, clarity, and guidance for the better tomorrow for you and your family. Without further ado, your host, Steve Altishin.



Steve Altishin  1:12  

Hi, everyone, I'm Steve Altishin. Thanks for joining us again for another broadcast of Modern Family Matters. Today, I have CPA, Darren Hall, with me to discuss the unique impact that divorce has on business ownership. Hey, Darren, before we start, can you tell us a little bit about yourself?


Darren Hall  1:30  

Sure. Hi, Steve, it's good to be here. I've been a CPA for, gosh, close to 30 years now. I'm currently a tax manager at the firm of BGO. We say BGO because Bottaini Galucci and O'Hanlon is a mouthful. So yeah, BGO, look us up. You can reach us at 


Steve Altishin  1:52  

Well, cool. So, looking at the issues involved in divorce and business ownership, I would imagine that in addition to comprising a large part of the marital assets, business is also likely a primary source of household income. That being said, Darren, where's the place to dive in on this?


Darren Hall  2:16  

Oh, gosh. You know, obviously, when you're at the point where you're facing divorce and contemplating everything that's happening, a major concern is what's going to happen with the business. It could be that it's one partner or one spouse, it's their livelihood, it's their baby. It's what they've done, it's what they want to keep doing. And there are serious concerns that it's going to have to be sold or liquidated, that it's not going to not going to be able to be kept because the other partner is going to need to be paid off. So it's a major concern. The first thing to do is remember that you're at a point now where the marriage is over, and you're now looking at everything as a business transaction. So how are you going to get to the end goal that you want, which is keep your business, separate it from your spouse, get your spouse his or her share of the assets, and move forward? 

So the biggest question, and the most difficult thing is, what is the business worth? If you look at a piece of real estate, it's easy to figure out what it's worth. If you look at a vehicle, it's easy to figure out what it's worth, you can look up Kelley Blue Book and you get the answer. For most things, the value is readily ascertainable. For business, it's a lot more difficult. There's a whole group of professionals that deal with that. They're called certified valuation analysts. There's a whole national organization that certifies people and they establish all their rules. And basically, they're going to look at one of three different approaches to determine the value of a business. 

They'll use the asset approach, which just basically looks at a business as all the equipment, materials, any real estate that might be owned, any land it's on. Whatever the business has, just look at all of those assets, determine what the value of all those assets are, and say, that could be the value of the business. 

Another approach is just to look at the market approach, kind of the same way we determine the value of real estate. You look at a comparable business, one that's relatively the same, or multiple businesses that are the same. What have they sold for? What are they currently selling for? You can get a pretty good idea of what the value of a business is that way. 

The third approach that gets used quite often is what's called the income approach. And that's basically where you look at the income that a business generates, assume that income is going to continue over a period of 10, 20, 30, 50, however many years, and you determine basically a value for the business based on the income that it generates. You do that by using a cap rate or an interest rate, essentially. If you use a cap rate of 10%, and a business is generating $100,000 of income a year, you divide 100,000 by 10%, and you get a million dollars. And that basically is saying that if I took a million dollars and invested it at 10%, I'd make $100,000. So that's what I'm doing with this business. So that's the third way that they will calculate the value of a business. And a really important thing to note in the income approach is oftentimes business owners aren't taking a salary for themselves, and they're doing a significant amount of work. So if you have a business that's generating $100,000 a year, and the owners working 60 hours a week, 52 weeks out of the year, the value of that business is going to be relatively low. Because in a real sense, if you're looking at buying that business as an investment, you're not wanting to work 50 hours a week to generate your income. If you put it in the bank, you don't do anything. So when I look at that business where the guy's working 50 hours a week, and he's making 100 grand, I'm looking at that and saying there's really not much value. All that is, is a job.


Steve Altishin  6:30  

Yeah, it seems like some types of businesses and professions really would lend itself to that type of valuation, where the value of the business is based on the person. I think we were talking about this, my dentist could move from Upper Hill dentistry to Lower Valley dentistry, and I'd still go there. I mean, it's the person who gives the value to the business.


Darren Hall  7:00  

Correct. That is one consideration to look at. And I guess really, the way I like to look at it is, let's say you have a businessman. In his profession, he could make $100,000 salary anywhere he goes. Any one of 20 different companies in town will hire him and pay him $100,000 a year as an employee. If he's running his own business, and running his own business he's making $300,000 a year, when we look at the income approach, we're going to look at that, and we're going to say, 'Because he has this business, he's making an extra $200,000 a year doing what he's doing.' So the value of the business when we look at it, we're going to use a cap rate, and we're going to base it on 200, not on 300.


Steve Altishin  7:49  

Yeah. So we've got these three ways, the three sort of common ways that you could approach valuing a business. So I take it that it doesn't matter what you do. You do one, and then you know exactly what it's worth. Is there anything else going on to evaluate a business?


Darren Hall  8:10  

You can do everything 100% correct and get a value from very, very low to very, very, very high. It's important to understand when you're looking at something that's come from a professional, a valuation analyst, it's important to understand what you're actually getting. There are standards that are laid out to protect the public, and to make sure that the rules are followed. But there are two different types of engagements that a valuation analyst will do. There's what's called a valuation engagement, and there's what's called a calculation engagement. They're very different. Calculation engagement, basically, should occur when you've got a group of people who, maybe it's three partners in a business and one partner is leaving, and the two remaining partners want to buy out the third part. And they make a bunch of assumptions about their business. They say, 'We think the income approach is property use, we think the cap rate should be this, we have all of these things that we all agree on. We want a valuation analyst to look at it and do a calculation of what the value of the businesses is.' So the valuation analyst takes all of this information, all of these assumptions are dictated by the client. And the valuation analyst says, 'Based on this assumption, and this assumption, and this assumption, and this assumption, and this assumption, and using this approach, and using this cap rate, I've calculated that the value of the business, based on all those assumptions, the calculated value is $10 million.'


Steve Altishin  10:05  

Well, that sounds a lot like my old calculus classes, where they would give us a problem, but they'd give us all the variables and we would just use the math to figure them out.


Darren Hall  10:17  

Correct. And there's a small amount that the valuation analyst will still, if something is entirely wrong or entirely unreasonable, or the assumption just doesn't make sense, the analyst is going to do a little bit of due diligence. But there's not a lot. It's generally presented. It's like, 'You gave me all this information, and I did a calculation.' And it's not very expensive, in the grand scheme of things, to have somebody do that, because they're not really doing a lot of work. With the second one, the valuation engagement, the valuation analyst is actually going to come in, he's going to look at the business, he's going to look at all three approaches, he's going to do a significant amount of market research, he's going to probably do all three calculations. He's going to calculate the asset approach, he's going to calculate a value based on the market approach, he's going to calculate a value based on the income approach. He's going to be the one that makes the assumption of where the markets going, what the risks are. He's going to be the one that determines all of these things. He's going to make what he believes are the appropriate assumptions, what he believes is accurate and relevant. And when he is all done, he is going to say, 'Number one, these are the values I calculated using the three different methods. I believe the income approach is most property used to value this business. I believe all of these things are accurate. And based on all of this, I believe the value is X.' So it's very different. Rather than saying, 'I've calculated a value based on what you gave me', he's going to say, 'I believe that the value is X.' And generally they'll give a range, 'I believe the value is 8 million to 10 million.' And that's much more expensive, it's much more costly for the individuals involved. And depending on what's happening, and what's going on, it's going to determine which type of engagement you want to have done.


Steve Altishin

That makes sense that if there's a higher value business, and there's a dispute between the spouses and they're not going to come together and agree on any of the variables, then that could be a situation  that would work.


Darren Hall 

Yeah, and in that case, you're probably both going to get a valuation analyst and both sides are going to have evaluation engagement done. And those numbers may still come in differently, and then you're going to kind of be arguing or shooting somewhere in the middle of those two.


Steve Altishin  13:12  

Yep, that makes sense. So, you valued it. Let's say we've got a value now. We understand the value of the business. How do we divide it? How do we figure out the best way to split it up and get the thing done?


Darren Hall  13:30  

Well, in any divorce, you basically are looking at all the assets that exist, and you're looking at distributing them, generally 50/50. One spouse is going to get 50% of the assets, the other spouse is going to get 50% of the assets. So oftentimes what happens is you'll have a home that's worth $500,000. You'll have a few other small assets that are really not significant, and then you've got a business that's worth $2 million. And there's no way to do just an even split, because one asset is way too big. In that case, there's the option of selling the business to an outside party and splitting the cash. If both parties are like, 'You know what, we've run this business for a long time, I'm tired of it. Let's just take my cash and go,' that's one option. There's the option for one partner, or one spouse, to buy out the other spouses interest. You look at, when you're all said and done, one spouse has gotten 2 million worth of assets, the other spouse has gotten a million worth of assets. The spouse with the 2 million needs to give the spouse with 1 million a half a million dollars in some way. It can be cash, it can be a note. Interesting to note is that any transfer of assets between spouses in a divorce is always tax free, as long as it happens incident to a divorce. And that includes, if you agree to pay $500,000, let's say over 10 years, you're going to pay $50,000 a year plus interest. That's entirely tax free, except for the interest. The interest, if there is any, is going to be taxable to the spouse that receives it. The third option is that one spouse just gets a bigger piece of the assets than the other. And another key thing that a lot of people miss quite often is, it's not enough to say, 'You got a million dollars worth of assets, and I got a million dollars worth of assets.' Because, as you know, assets have a thing called basis. And the basis determines what the taxability of those assets are going to be when they're ultimately sold. So, say, for example, I've got a building that's worth a million dollars, but it was purchased 30 years ago for $100,000. And I've got another building that we just bought last week for a million dollars. If we split those two properties up and I say, 'Here, you have the one that we've had forever, and I'll take the one that we just bought last week.' Well a year from now, when I sell that property for a million dollars, I'm going to pay zero in tax. When you sell your property for a million dollars, your basis is only $100,000. So you're going to have a capital gain of $900,000, and you're going to pay at least $200,000 in tax. So all assets in a divorce settlement should always be tax adjusted to their their after-tax value. 


Steve Altishin  16:53  

That makes total sense. 


Darren Hall  16:55  

Basically you do a hypothetical sale of everything, what would the tax be on everything, and now split up the after-tax versus the pre-tax. 


Steve Altishin  17:06  

Right. So what if the couple, despite the fact that they are splitting up their marriage may not want to split the company? Maybe they want to remain co-owners? Is that something that can happen, or is that a tax fiasco? How can that work? 


Darren Hall  17:25  

No, that absolutely can happen. And sometimes it can be very beneficial, tax wise, for them to do that. As I said at the beginning, you're at the point where your marriage is over. You should take emotion out of it, and you should start looking at it as a business transaction. What can I do? This is a person that at one point in time you loved enough to get married to. Things have gone poorly, now you're now you're separating, and it would be great if you can just look at, how do we structure everything that we're doing? How do we make sure that both spouses come out of this the best that they can possibly be? And oftentimes, if they remain both in the business, that is a phenomenal result. Because there can be shifting of income from the higher income tax payer to the lower income tax payer, which can result in some tax savings and can be split by both parties. 


Steve Altishin  18:29  

If they both want to stay owners, is there a reason to do a technical sale, or should they have a business agreement? What should happen at that point, since you're going from being married ownership to being not-married ownership?


Darren Hall  18:47  

Yeah. If it has been just the husband and wife that own the business all along, and now they're separating, it very well may be that there was never any kind of an operating agreement. You certainly need to get an operating agreement in place that dictates who's doing what, who has what rights, who owns what percentage of the business, etc. Any two people who aren't married should always have a very, very clear document that spells out what's happening with the business. So a divorcing couple is going to be the same thing.


Steve Altishin  19:26  

So Darren, I know you talked earlier about working together to structure a tax efficient outcome. You talked about how, when you're distributing a business, you take in the taxes or decide which is better. Can you elaborate a little bit on that? It seems to me that a lot of spouses or couples may not have sufficient assets to equally divide to make up for someone getting a business, so they start looking at support or other kinds of ways that they can they can make this work efficiently.


Darren Hall  20:08  

Yeah, well, once the couple is at the point where they've kind of come to an agreement, it sounds like things are still going reasonably well, they're still talking. They're talking about wanting to stay both running the business together. We're at a good point now where there are a lot of opportunities of what they can do. I always basically preach to my clients about the difference between tax evasion, and tax avoidance. Tax avoidance is using the laws, working within the laws, structuring things properly, so that you can basically avoid taxes--putting money into an IRA, or putting money into a pension plan, deferring assets, spending money on new equipment so you can take the bonus depreciation of section 179--all of those things are using the rules to avoid paying tax. Tax evasion, on the other hand, is intentionally breaking the rules-- receiving income and not reporting it, not putting it in the books and never reporting it to the IRS, making up fake deductions or deducting things that you're not allowed to deduct--those types of things are tax evasion. They're against the law, and if you get caught, you're going to get penalized and pay the tax and interest. And if it's bad enough, there can be criminal prosecution. So we want to look at, what can we do to legally avoid as much tax as possible? Working within the rules, you've got a couple that's going to run a business together now. I've looked at some scenarios where, you know, say the business generates $250,000 a year. And let's just say that the husband has owned and run the business, the wife is really not super involved, she maybe did a little bit of work, she took care of the Facebook account, and the social media stuff. Maybe she did a little secretarial work or whatever. But, you know, she didn't really do a lot with the business and she's not super interested in staying involved with the business. The couples got three small kids, so she's basically going to stay home with the kids, and the husband's going to continue to run the business. We've done a valuation and determined the business is worth a million dollars, and they've split all of their other assets. They had two homes, they split, they each took a home. They split everything else up evenly, but the business is left. So the husband's going to pay the wife $50,000 a year for 10 years for half of the business. He's also going to pay about $40,000 a year in child support, which is roughly what the guidelines say he has to pay. So the wife is going to end up with $90,000 a year, and that's 100%, tax free, every single bit of it. The husband's starting out with $250,000, he's giving the wife $90,000, which leaves him at $160,000. And then he's gonna pay, between federal and the state of Oregon, he's going to pay another $80,000 in tax, which is going to leave him with about $80,000 when he's all done. So if this couple has gotten to this point, and they've said, 'This is what we're going to do.' And they come to me and they say, 'Here's where we're at.' I would look at it and I would say, 'You know, the wife's doing a little bit, is she going to continue to do the social media stuff? Can she continue to come in and do a little bit of clerical work? Is she willing to do a little bit if there's a little bit of benefit to her?' And she may very likely say, 'Well, yeah, I'd love to keep doing that.' You know, the benefit to her, she's got a vested interest in this business. If this business fails, all of a sudden, $90,000 a year that's coming into her could go away. So she's really got a vested interest in wanting to see this business do well. So I would say, 'If she's really legitimately working, why not pay her a salary? Why not pay her $2,000 a month to do the little bit of stuff that she does?' So the husband says, 'Well, why would I do that?' And the answer is, what we want to do is we want to get a business deduction, because Child Support is non-deductible. But if the business pays a wage of $25,000 to the former spouse, that's now going to be a tax deduction. And the husband, whose taxable income is $250,000, he's in the 35% tax bracket. So he's gonna save, you know, $10,000-$11,000. Or, not quite that much, he's gonna save $9,000 maybe from that $25,000. So that's a big savings for him. On the wife's side, she's going to have $25,000 of taxable income now. She's going to be able to file as head of household with three small children and getting $25,000 of the wages, and $20,000 of child support. She's providing more than half the costs, so she qualifies for head of household, And she would get, based on $25,000 of earned income, she would be able to get the earned income credit of $6,500 bucks. So net for her, she's gonna pay maybe a couple thousand bucks in employment taxes--you know, fica, Medicare, all that stuff. She's going to pay about $1,000 bucks in tax probably to the state of Oregon. And she's going to get a check back from the federal government at the end of the year for about five grand. So she's going to get five grand extra in wages, five grand extra from the federal government, and have about three grand of extra expenses. So she's going to be $7,000 ahead by working a little bit, and she's helping to preserve the business and make sure the business continues to do well. Which the business is paying her, so it's very, very, very beneficial to her.


On the husband's side, even though he's paid out an extra $25,000, or an extra $5000, and he's gonna have a couple thousand of business side payroll taxes on that, so he's paying out an extra $27,000 now. Or actually it's $5,000 extra plus $2,000, so he's $7,000 extra out of pocket. But when he gets all said and done, his tax benefit is going to be around $9,000. And if he happens to be in that sweet spot, which I intentionally set this one up to be there, even though he's not able to claim the children for earned income credit, he could still be allowed to claim the tax credits for the children. If husband and wife do this thing correctly, they say, she's gonna be set up to claim the earned income credit, because they're qualifying children for the earned income credit, while he can claim them as dependents on his tax return. He can claim the $2,000 per child tax credit. That credit goes away when your income hits $240,000. It phases out between 200 and 240. So by paying her a little bit of salary, he gets some of that back. So he ends up saving about  $15,000 in tax and pays out an extra $7,000 to her. So he ends up $8,000 ahead, she ends up $7,000 ahead. And that's the kind of scenario we can always look at when the two people have reached an agreement and this is how we want the agreement to work. I step in, I look at it. Obviously the first thing I'm going to do is get a waiver from each of them saying, 'We understand that you're working for both of us, you're not going to favor one over the other, you're going to share all the information. We both understand that if we both had our own CPA, they might fight with each other and fight for us. Whereas we're going to the same CPA, and he's just going to look at this and lay everything out on the line.' It could be that a couple comes to me and I say, 'Man, you guys didn't consider the tax basis of the assets at all and this spouse is getting a real raw deal here. And, you know, the other spouse is going to be mad at me at that point. But when you come to me as your CPA, as a divorcing couple, and tell me you want me to represent both of you, you both waive your conflict of interest. And I'm just going to lay it on the line. Whatever I find, whatever my determination is, I'm going to tell you, and I'm going to share everything with both of you. If you've made a mistake that drastically favors one side, I'm going to tell you. But really, my goal is going to be to look at it and say, 'What can we possibly do to structure this to make things a little better for both sides?'


Steve Altishin  29:20  

That's fairness, that's basic fairness. You're using, like you said, tax avoidance, as opposed to trying to scam the government for the purposes that tax avoidance was always intended for. It was always intended to be an incentive for what people feel are societal goods, and that's what this is. You're making your dollars stretch. It's win-win for both of them, and that leads to the fact that you're preventing future bad feelings. Things can get really, really bad sometimes if someone feels that they've somehow gotten the short shrift in a divorce. And you're helping to prevent that. I think we had talked, you had said the other thing about that is that, for you, as the business owner, it's really important to keep your reputation up. And it's going to help that.


Darren Hall  30:25  

Yeah, absolutely. You know, when you approached me and asked me to do this webinar, my first thought was, 'Gee, I've done divorce three times, I know a lot!' Unfortunately, I've done it. I've done it really, really well, and really, really easy. And I've done it really, really, really hard. And I can tell you, getting through a divorce, being exceptionally fair to your soon-to-be former spouse, and having her treat you the same way, is phenomenally better than than doing it the hard way. You know, my ex wife and I, we went through a pretty hard divorce. And I know if you spoke to her today, she would say, 'Darren's a brilliant CPA, he's very good at what he does.' And I have clients that have come to me that are my clients because they spoke to her. And there's a lot to be said for the person that divorced you to speak highly of you. And depending on the type of business, it can be exceptionally more important. For accountants, it is hugely important. My reputation is really what I have, and I can't stress how important it is to leave with a good relationship with your former spouse, especially if you are a business owner. The smaller your businesses, the smaller the community that you're in, the bigger of a deal it is.


Steve Altishin  31:49  

That makes so much sense. And it's important in any number of ways to try to leave a divorce on good standing. It's good for the kids, it's good for the visitations, it's good for everything, and now it makes sense that it's good for the business. It's a good business decision. Gosh, Darren, thank you very much. This was very helpful. You hit some really interesting points. One more time, do you want to give us an indication how, if someone has a question later on, they can maybe get a hold of you? 


Darren Hall  32:26  

Sure. You can always reach me. My email is going to be my last name, [email protected] You can call, (503) 233-1133, and ask to speak to me. And of course, I understand they can always reach out to you and you can get in touch with me. So I'm more than happy to offer advice and would be glad to work with some folks if if they need help.


Steve Altishin  33:01  

Well, thank you so much. And you know what, I want to thank everyone else for tuning in as well. And as Darren said, if you have any questions about anything at all that we've talked about today, you can shoot me an email at [email protected], and we can help you get in touch with Darren. Also, I really would ask and hope that you would leave a review on our apple podcast site. It's great for us and helps us keep delivering you guys the kind of podcast you really want. So just go there, write a review, be honest, but make a review. And with that, until next time, everyone stay well. Have a great day. See ya next time.



You're listening to Modern Family Matters a legal podcast, focusing on providing real answers and direction for individuals and families as they navigate the growths, changes, and challenges of creating their new family dynamics. Modern Family Matters is sponsored by Landerholm Family Law, serving Oregon and the Pacific Northwest and devoted to providing clients with compassionate and fierce legal advocacy with a firm belief in the importance of upholding the family unit amidst complex transitions. If you are in need of legal counsel or have additional questions about a family law matter important to you, you can visit our Landerholm Family website, or call us at (503) 227-0200 to schedule a case evaluation with one of our seasoned attorneys. Modern Family Matters, advocating for your better tomorrow and offering solutions on legal matters, important to the modern family.