No two divorces are the same. Some are simple, others more complex. Nothing can be more complex than attempting to resolve the financial fallout of the high net worth couple divorcing. Lawyers and mediators who assist such families must have the necessary expertise and experience in managing many moving parts in the financial life of the high net worth family.
The family’s estate and holdings are often complex and diverse. For example, real estate holdings in multiple jurisdictions present challenging considerations involving federal taxes, currencies, holdback provisions and restrictions on the removal of monies from the foreign jurisdiction. Multiple family residences including cottages, timeshare, fractional ownership, ski chalets and foreign condominiums present specific considerations in light of section 18 of the Family Law Act that permits a family to have more than one matrimonial home – which is granted specific protection under Ontario law. Recreational properties carry specific sentimental value to the family. For this reason, a family may wish to avoid a market sale. Title to real estate may be held by more than one family member. Estate plans may be disrupted due to divorce. In case of a market sale, the selection of appropriate realtors and the necessity of staging is a live concern.
Investments in different countries require proper disclosure, analysis and valuation. The liquidation of such assets may need to be avoided or, in the alternative, carefully managed so as to maximize the net proceeds by avoiding withholding tax, trailer fees or brokerage costs. The timing and risk of currency exchange must also be carefully considered.
The valuation of private shares of a family business and the break-up of ownership in cases where both spouses are owners and/or operators of the business require great caution. In such cases, a resolution of such matter may require the employment of forensic accountants, business valuators and corporate and tax lawyers.
Senior executive remuneration often includes signing bonuses, commissions, profit-sharing and stock options for corporate executives. The valuation of such remuneration can become complicated depending on the dates the options are granted, vested and exercisable and whether the payments made to exercise the options are based on limitations in the stock price. Pensions and retirement plans can comprise of various options such as buyouts, cost of living adjustments and surviving spouse benefits. Different retirement dates may significantly impact the determination of value of a pension for the purposes of equalization of net family property.
When serving a high net worth spouse experiencing separation and divorce, it is critical that he or she receive the best quality of care. The lawyer who can assemble the right set of professionals will be able to find the path to a settlement that is discrete, fair and least costly.
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