A professional practice is an asset which may be valued and equitably distributed in a divorce. Generally, that value is a function of the income generated by the practice after deducting reasonable compensation being paid to the professional. However, once valued, the income attributable to ownership of the practice may not also be the basis on which to award spousal maintenance.
Take the September 10, 2015 decision of the Appellate Division, Third Department, in Mula v. Mula. There, after 42 years of marriage, the husband commenced this action for a divorce. The wife counterclaimed for divorce and, by agreement, the parties were awarded mutual divorces on the grounds of irretrievable breakdown. During the marriage, the husband earned his C.P.A. license in 1981 and became the sole proprietor of an accounting practice in 1997. During the course of the marriage, the wife was primarily involved with the upkeep of the parties’ home and raising their three children.
Among other rulings, Ulster County Supreme Court Justice Anthony McGinty awarded the wife durational maintenance of $1,500 per month.
On appeal, the Third Department reduced this award to $1,000 per month, holding that Justice McGinty had double-counted the value of the husband’s professional practice. The lower court had valued the income generated by the practice as an asset and equitably distributed that asst. However, Justice McGinty also deemed the husband’s income to include the entire income generated by the practice when calculating the maintenance award to the wife.
The accounting practice was valued at $255,000. Apparently, the husband’s C.P.A. license was separately valued at $39,000.The husband contended on appeal that Justice McGinty had erred when calculating maintenance by failing to reduce his available income to reflect the court’s distributive award of his professional practice and license.
At issue is the rule against double counting, which provides that once a court converts a specific stream of income into an asset, that income may no longer be calculated into the maintenance formula and payout.
The husband’s solely-owned accounting firm was a service business for purposes of this rule.
Without further elaboration, Justice McGinty had utilized an annual income of $100,000 to calculate the maintenance award to be paid to the wife. However, the record on appeal was sufficient to reveal that the fair market value of the husband’s practice was calculated using his reported annual income from 2007 through 2010, ranging from about $98,000 to $109,000. As such, the appellate court found it evident that Justice McGinty had not made the necessary adjustment to account for the distributive award of the business. Insofar as the license was concerned, however, the record showed that the expert allocated compensation as between profits and payments for services rendered to avoid double counting, making further adjustment unnecessary.
The Third Department found the record sufficient for it to make the adjustment to the maintenance award necessary to account for the distribution of the business. Factoring in that adjustment and considering the equitable distribution award (also modified on appeal), the appellate court concluded that $50,000 should be utilized as the husband’s income available for maintenance purposes. Using that amount, the court reduced the maintenance award to $1,000 per month. Based on Justice McGinty’s reasoned analysis and its several cited relevant statutory factors, the Third Department found it was not an abuse of discretion to make the maintenance award durational [the term was not specified].
Comment: The court does not reveal the valuation calculations to show the intertwined separate valuations for the C.P.A. license and the professional practice. Indeed, as the sole owner of an accounting practice it would appear that the enhanced earnings attributable to the C.P.A. license would have merged and be subsumed in the value of the practice.
Thus, for example, the husband was earning $100,000 per year from his practice. The court stated that $50,000 should be used as the husband’s income not attributable to the assets valued and equitably distributed.
What is the reasonable compensation that the practice would need to pay an accountant to do the accounting work of the practice? If it is $50,000 (the amount used by the appellate court when making its modified maintenance award), and the practice generates $100,000 per year in income, then the practice may be valued based on the $50,000 per year being generated by the practice in excess of the $50,000 needed to reasonably compensate the hired accountant.
If that hired accountant is a C.P.A., and the husband began the marriage without that license, then the difference between the reasonable compensation paid to the employed-C.P.A. and what a non-C.P.A. accountant (if that was what the husband was before the marriage) would now be earning represents the enhanced earnings capacity of the husband attributable to obtaining the C.P.A. license during the marriage.
So let’s say the practice would need to employ a C.P.A. If that C.P.A. should be reasonably paid $60,000 per year, but a non-C.P.A. accountant would only be earning $50,000 per year, then the value of the enhanced earnings attributable to the husband obtaining his C.P.A. license would be the present value of the $10,000 per year differential in earnings over the husband’s statistically remaining work life.
Thus, using $50,000 per year for the husband’s income not already included in the income streams for the practice and C.P.A. license makes sense if, for example, the accounting practice generating $100,000 per year would need to hire a C.P.A. to “replace” the husband and would have to pay that C.P.A. $60,000 per year; and that that C.P.A. earns $10,000 per year more than a non-C.P.A.
For a related blog post, see Income Generated by Tangible Assets Divided in Divorce Is Considered on Maintenance Award