If you face divorce and you, your spouse or both of you jointly own a business, proper valuation of that enterprise is necessary so the court can fairly divide the marital estate. You and your spouse may be able to agree on a number, but if not, the judge will evaluate the evidence and determine a value.
The value of expert witnesses
Each side will each be able to present expert-witness opinions to the court about how the business should be valued for purposes of distributing marital property. Or you may be able to agree on one expert that is acceptable to both of you.
Seek out a family lawyer who understands the appropriate type of expert for the particular business. The attorney will likely have a network of reliable, respected evaluators. Depending on the characteristics of the business, proper experts may include forensic accountants, tax experts, actuaries, business appraisers or others.
Especially in a high-net-worth marriage or a business of substantial value, choosing experts is crucially important. Their opinions will be the evidence the judge considers. Your spouse’s lawyer could present an expert with a dueling opinion, so the strength and reliability of your side’s expert really matters.
Also, the judge could call a neutral expert if the court feels the parties have not submitted reliable evidence of business valuation – another reason for your lawyer to present a solid expert opinion on your behalf. Florida courts require that a judge base an asset valuation on “competent, substantial evidence.”
According to one appellate court opinion (quoting other cases), competent evidence is admissible in court, while substantial evidence means “real, material, pertinent, and relevant evidence … having definite probative value …” Evidence is not substantial if it is “speculative … theoretical … or hypothetical …”
Marital or separate property
The court must determine whether all or part of the business is marital property to be equitably divided between you and whether any of it is separate property owned by only one spouse. An expert business evaluator may help with this question. Once the judge establishes the marital portion of the business, that part must receive a value.
Nuts and bolts
Florida courts in divorce value a business interest using fair market value (FMV), defined as the price acceptable to both a willing seller and a willing buyer when neither are under duress. The valuation must consider all business assets as well as business liabilities and debts, otherwise the business would be under- or overvalued, explained a 2021 appellate opinion.
The role of goodwill as part of business evaluation is another common, but complicated, issue in these cases.
This post introduces a complex topic that we will continue to discuss in this space.
