Unvested Stock Options: What Constitutes “Double-Dipping?”

In that case, the Court noted that stock options exercisable after the date of the divorce are similar to vested pension plans and concluded that these options "are an economic resource acquired during the marriage constituting a marital asset. Determining the current share value for publicly traded companies can be as quick as a Google search. The next step then would be to figure out how to distribute the options, or their value. The couple later decides to divorce, and during a discussion about the division of assets, the stock options come up. Even in this second method of division, the trial court, retains jurisdiction over the division of unvested benefits.

Unvested stock options are marital property to the extent that they are consideration for marital efforts, and nonmarital property to the extent that they are consideration for postdivorce efforts.

A Common Stock Option Hypothetical

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If one were to apply this case to unvested stock options, one can argue that the unvested stock options, like the unvested retirement plan, should also be considered marital property, and therefore the option holding spouse should be entitled to a cut of the unvested stock options, should said options ever vest. Vested v. Unvested Options In addition to determining whether the options are separate property or marital property, you will need to consider whether the options are vested or not. The vesting period refers to the amount of time an employee has to wait before he is able to exercise an option. The source of property assignment only included options which were attributable to the marital partnership, and did not include stock options which were given for post-marital efforts. Therefore, the Court noted, those unvested options could be considered income for alimony calculation purposes.