Season 5 Episode 4: Valuing the Family Business for Divorce During an Uncertain Economy

Note: Our Podcast, “A Year and a Day: Divorce Without Destruction”, was created to be heard, but we provide text transcripts to make this information accessible to everyone. All transcripts on our website are created using a combination of speech recognition software and human transcribers and could contain errors.

Jaime Davis: Welcome to Episode 4 of Season 5 of “A Year and a Day.” I’m your host, Jaime Davis. Addressing how to deal with the family business during a divorce is a fairly common issue, and for many business owners, the divorce process will involve critical decisions about the future of their company. If spouses cannot agree on the value of their business, an expert is usually brought in to perform a formal business valuation. Today, we will be discussing issues related to valuing a family business in an uncertain economy with CPA and Certified Valuation Analyst David Amiss. David is a partner with Carr, Riggs & Ingram, and is responsible for valuation and litigation services for attorneys, CPAs, and their clients. David has over 15 years of experience in public accounting, which includes business valuations, tax, accounting, and advisory services. David graduated from Valdosta State University with a degree in accounting and obtained a master’s degree in accounting from Georgia Southern University.

Welcome, David.

David Amiss: Hey, thank you Jaime, for having me.

Jaime Davis: So let’s jump right in. We have a lot of really good ground to cover today. How does the valuation process work in a typical divorce case?

David Amiss: From, from my perspective, the valuation expert, it, it typically goes, uh, as follows. There’s an introductory conversation typically with the attorney, sometimes with the attorney and the, and the spouse that’s going through adivorce. And in that conversation we’ll discuss that the engagement type. Uh, there are different types of evaluations that we can do. Uh, so we, we, we talk about, you know, where we’re at in the, in the process and the divorce process and discuss engagement type, uh, the standard of value, which is, which is pretty important, the, the timeline when, when it’s needed, uh, if there’s mediation or trial or when a report is needed. Uh, we discuss fees and, and various other things such as passive or active components that we may get into, uh, later from there, uh, that that’ll drive the, the drafting of the, the engagement later the contract, uh, typically to the attorney, sometimes to the, to the spouse and a, and a list of documents that we’ll need.

It’s not a conclusive list, but it’s, it’s most of the items that we’ll need, uh, to get started and make some progress on the valuation. From there, we, uh, using the, the historical information will begin to enter it into our software. So the, the analysis, the historical analysis, uh, that we’ll do, which include looking at the, the company, the industry, and the economic factors, will provide a basis for questions that will then go to management, which will then allow us to understand and project where the company is going. From there, we’ll finalize the value, which has several aspects to it. We’ll draft a report, uh, discuss the report with, uh, with the attorney users or whomever, and then testimony if required.

Jaime Davis: Okay. So this sounds like it’s a pretty comprehensive process. When you are preparing evaluation of a business in connection with the divorce case, what is the standard of value that you use?

David Amiss: Yeah, that’s a great question and a very important question. So for North Carolina, the general statutes reference net value, the, the case law then helps us to understand what that is. And the best way to explain standard of value in Equit distribution context in North Carolina is to say it’s a, it’s hybrid. There are components of fair market value, and there are components of in investment value, fair market value connotes. It’s, it’s the value, uh, in the market, if you will, or perhaps we could refer to it as a value in exchange in which somebody is buying and selling an interest. And so it’s different than investment value. Investment value is the value to the person that’s holding, uh, the ownership interest. And so perhaps a, a good example to, to explain it, and this, tt, it happened in a family law context. A person owned, uh, an insurance agency, and with this agency and the contract they had with, uh, um, with, with the, the folks that were allowing them to sell the insurance, they could not sell their company. Uh, they, they, uh, they couldn’t go onto the open market and somebody buy that book of business from them, if you will. And so that has value to the, to the person that holds the interest at that time. Uh, but it doesn’t have any, any value in the market. And so under the investment value, that company would be worth more than under the, the fair market value, uh, standard of value. So does that, does that help or make sense?

Jaime Davis:Yeah, no, I think that’s great. That makes perfect sense. So how is fair market value determined? Is it just the company assets less its debts, or are there other things that are taken into consideration?

David Amiss: Yeah, I, I think you, you pretty much hit it, uh, at least for the, the asset approach and, and, uh, but there are all two other approaches that we use the income in the market. So the asset approach is the fair market value, the assets less liabilities. This typically results in a, in a floor value, if you will, because the intangible, intangible assets are not reflected, uh, on the balance sheet. Uh, the income approach is, is one that we use, uh, a lot. And, uh, and it is relatively simple to understand using a mathematical formula. So, uh, the value of a company through the income approach is, is, uh, value equals benefits over return. And so what benefits can accompany is a company capable of producing into the future, uh, because we’re not buying past results, we’re buying future, uh, potential. And so what benefits i.e. Cash flows or, or net income is a company capable of producing into the future and with any benefit stream is gonna come some level of risk.

And so what, what rate of return does an investor require to make, uh, to make that investment? And so value equals the benefits, uh, over or divided by a rate of return. And then the third approach is a, is a market approach. And so within the market approach, we review companies in, in a, in a similar industry that have sold, and specifically the relationship between the sales price and the financial data for that company. So revenue. And so we will, we’ll look at the sales price and divide it by, uh, the revenue, uh, to come up with a multiple and then apply to the subject company, uh, that we’re using.

Jaime Davis: In your experience, when you are valuing a business for a divorce case, which approach would you say is the most common?

David Amiss: The most common, uh, is, is the income approach. You know, the asset approach is typically only used if it’s a, a holding company. Uh, so family limited partnerships, the whole land or, or, or, or, or stocks and bonds. But for an operating company that’s not asset intensive like a trucking company, the income approach, uh, uh, is, is typically the best approach. The market approach is sometimes used as a sanity check. Um, the, the evaluator or the appraiser may end up waiting their, their final conclusion of value on both income and market. But, uh, the market at the very least can provide a sanity check that companies, similar companies, uh, are selling for, for similar values that would we determine through the income approach.

Jaime Davis: When you are valuing a company, do you ever discount the value for any reason?

David Amiss: Yeah, discounts can apply typically for, uh, two, two reasons or two different kinds of discounts. Discount for lack of control and discount for lack of marketability. The discount for lack of control is intended to reflect the reduction or the diminution of value associated with not with an ownership interest that doesn’t control the business and operations. Uh, the inability to determine the direction of the company, the day-to-day operations when dividends or returns of of equity will be, uh, paid out, uh, and, and when the business will ultimately be sold and be able to recruit your final, your investment. Uh, we, we typically apply a discount for lack of control there. The second discount is for marketability or liquidity. Uh, and so the, if you have a, a controlling interest in a, in a private company, in a small business like we see in equitable distribution context or, uh, or minor minority interest there, there’s not a, there’s not a ready market for that.

If you owned a, a share of Apple stock, you could convert that share of Apple stock to cash in three days. If you wanted to sell an interest in x, y, z, small business, uh, and you wanted to sell today, um, you’re ready to sell today, when are you actually gonna, when’s that sale gonna be consummated, uh, and have the cash in hand? It, it, at the very least, it’s probably six to nine months out. And so that discount is intended to reflect, uh, that diminution of value because you can’t sell it right now and convert it to cash.

Jaime Davis: So that’s really interesting. I would think there might be a little subjectivity here. How do you determine what discount rates should be applied

David Amiss: For the discount for lack of control? Uh, one of the things that we do is, is we look at publicly traded companies. If you buy those stocks, that is, uh, that is a non-con controlling, marketable value and, uh, stick who there, uh, so you don’t control it, but, uh, but, but it is marketable. And so when those, when when shares and those companies, or when that company goes from being, uh, controlled by a few people to a controlling interest, the premium that a person is willing to pay to go from a minority interest to a controlling interest, uh, the inversion of that can, can give us or tell us what the discount for control is, the discount for marketability. Uh, sometimes we look at, uh, restricted stock studies. And so when, when restricted stock shares are are issued, there’s typically, um, a requirement that you can’t resell those in a certain period of time. And that change in value from the restricted stock shares to the unrestricted stock shares can be a good proxy for marketability discount.

Jaime Davis: So we’ve determined the discounts, we’ve looked at the financials, business valuation is going along when you are valuing a business for equitable distribution, which for those listeners who don’t know, is the division of property between separated spouses. How do you decide what date you are evaluating the company? As of,

David Amiss: In North Carolina, we use the, the data separation. So we’re relying on, on, on you, Jaime, to tell us what the data separation is. And that’s, uh, that’s, that’s the date we do the valuation, the, the primary date there. There are also two additional dates potentially that could be either after data separation or before data separation. So the, the after date separation valuation is a, maybe we call it date of trial or, or when the assets are or, uh, divided. And so if there’s a, if there’s a significant period of time between data separation and the data trial or division, and we think that their company’s value may have changed there, there could be a good reason to do evaluation to see what, what the value is and, and how it’s changed. Sometimes there’s a need to do evaluation before, uh, the data separation, and that could be if, if the business started before the marriage or if, uh, there was gifts of interest to the spouse of the business interest before the data separation.

Jaime Davis: Okay. And just to clear up for anyone who may not know, in North Carolina, the data separation is the date that spouses begin to live under separate roofs with the, the intent of at least one of them that the separation be permanent. Um, we don’t have any requirement in North Carolina that something be filed or that a contract be signed to establish that date of separation. It is simply the day that the two folks start to live in separate houses. You touched on this briefly about the value of the company potentially changing after the data separation. Um, but before the business is actually distributed to one of the parties, how do you handle that change in value?

David Amiss: Uh, that’s a great question. Uh, and it’s a, it’s a often a complex and difficult analysis At a high level, we need to determine what is active and what is passive. And so the, if the value changed, is it due to active factor factors of, of the spouse, uh, or, or passive factors? Uh, so wh why did it grow or why, why did it change? And there are quantitative and qualitative factors that lead to the, to the difference and ultimately our conclusion.

Jaime Davis: Can you give us some examples of what would be considered an active factor? Something that a spouse actively did to change the value of the business.

David Amiss: Being actively involved in, in management, their roles and responsibilities, uh, and the comparison of, of their role versus third parties. Uh, the, the business model. Is there an ability to replace, uh, the spouse product development if they are actively changing the, the business model and adding new products, uh, how involved they are with the sales relationships that the customer base, is there transferability of the value related to that spouse?

Jaime Davis: And you also mentioned that there could be passive factors. What are some examples of passive factors that might apply?

David Amiss: Yeah, I think the best example of that would be tax law changes. And so with TCJA, the tax legislation was passed beginning in or applicable in, in 2018, tax rates effective evaluation cuz we’re, we’re, we’re using in under the income approach, we’re, we’re estimating the value of a company and we take into consideration tax rates. So as tax rates change with that legislation, uh, that produced a change in the overall value of a company. And so, uh, that’s a passive change. Uh, other changes could be, uh, GDP growth, uh, consumer confidence, inflation, interest rates, customer spending, customer confidence, commodity prices and things of that nature that are completely outta control of, of the owner’s spouse.

Jaime Davis: And from a divorce standpoint, the reason that these factors are important and deciding whether they are active or whether they are passive is, you know, because how the, the difference in value is going to be handled. So if the business was valued on the data separation and some passive factors caused that value to change before the data trial or the data distribution, we’ll call it, then that change in value is distributable. Whereas if the change in value is the result of the active efforts of the business owner’s spouse, then that change in value is not gonna necessarily be distributable and it’s gonna be distributed to the party at that data separation value. So, you know, you make our jobs as divorce lawyers a lot easier by helping us determine what is active and what is passive and what should be distributed to a spouse and what shouldn’t.

David Amiss: Well, it’s a, it’s a, it’s a fun exercise and, and it gets particularly, uh, complicated. There’s a case now going on where a spouse received gifts of, of stock in a, in a particular business, uh, three or four times between date of marriage and, and date of separation. So, uh, in that case, you have to value the company at each, at each of those and do an active passive analysis from each of those to the data separation. So it’s complicated, but, uh, but enjoyable exercise.

Jaime Davis: I’m glad you find it enjoyable because I certainly cannot handle that part of it. We’ve talked a lot about business valuation, how it works in the context of a divorce. Would you say that the uncertainty of the current economy has impacted business valuations in divorce cases?

David Amiss:Yeah, I think absolutely. Uh, the income approach likely is, is, is, uh, is affected, uh, more, uh, the market, the market approach to a less degree. But if we go back to the, the income approach and, and what I, uh, the formula that I discussed, the value equals the benefits of a company future benefits of a company divided by or over the rate of return, you know, the benefits could be up or down. You know, covid has positively affected some companies, uh, but a lot of companies it’s, it’s negative and, and the period of the, of the positive or negative or the up or down, it could be short, it could be certain, it could be long or it could be uncertain. Trying to determine what that is. Again, cuz we’re, we’re looking at what are the future benefits of a company, cuz we don’t, we don’t make an investment in anything for what it’s done in the past.

David Amiss: Uh, that may contribute to what we think about what it is capable of in the future, has certainly made things more difficult. It, it, it also affects the rate of return and some of the continued inflation effects. Uh, it also has an effect on the, on the valuation. So on a different note, a lot of times the valuations are for smaller companies in equit distribution context, we will capitalize a value. And so we will look at the historical performance of a company and, and see, you know, what’s the best indicator of future performance. And we can, we can take the, the history of a company and capitalize it forward to get our value. But with some of the uncertainty and not knowing what’s gonna happen in the future with some of these companies, we have to do what’s called a discounted cash flow analysis where we begin to project forward the earnings in, in the first year into the future, and then the second year into the future, and then the third, and then discounting them back, which requires good projections from management.

Jaime Davis: When you are discounting the cash flow, how do you determine that discount rate?

David Amiss: Yeah, that’s a, that’s a great question. The, the best way to explain that is just, uh, using, what’s a phrase called the buildup method. With, uh, with the capitalization rate, we, we typically build that up from the, uh, element of lack of risk to, to most risk. And so we’ll start with a risk-free rate. Uh, so what is a, a safe rate, a safe investment rate? And that may be a T-Bill or, uh, a bond 20 or 30 years. And then we say, what’s the additional risk that’s required to invest in, in a, in a, in an equity, a large, uh, a large cap stock, a large equity that may be five to 6% or, or or more. And so we, we add those elements together and then we go a step further and we say the additional risk or return that’s required for an equity, uh, I mentioned is for larger companies.

Well, a lot of the companies that we’re valuing in North Carolina for equit distribution purposes are, are not nearly as large as a GE or an Apple or Tesla or, or whatever. And so there’s an additional rate of return, uh, that, that you the investor are gonna require for a smaller company. There, there’s inherent more risk between those companies. And so we, we also consider an additional risk premium for industries. If a normal, uh, equity risk premium is, is X but there’s a particular industry that’s more risky on, on the whole or less risky, we may add or subtract for there as well. And then the final component is the company specific risk. And so we we’ll look at and say, are there other elements or other factors of this company that, that are, that are risky? And so some of those could be, is there a concentration in customers, is there a lack of management? And things of that nature that, uh, that add to the risk. So the, the buildup methods, so the risk-free rate, the equity risk premium and industry risk premium, and then the company specific premium. And once we add all those up, uh, that is our, our discount rate.

Jaime Davis: We talked about the uncertain economy impacting business valuations. Is there any way to mitigate that impact?

David Amiss: I can answer that question from two perspectives. So from the business perspective, it’s reduced risk, reduce risk, reduce risk, uh, I just talked about the company specific risk premium. And so wherever you can reduce risk. And so, uh, if there’s one customer that makes up 60% of revenue, we as much as possible need to try to diversify that. Same thing with, with, uh, with staffing and employees and, and build, build a bench, uh, and, and train people and grow people, improve the accounting function before financial statements is, is bad for a lot of reasons. There’s inability to manage, manage the business, which produces risk. Uh, when we go to do our evaluation, it can, it can produce problems. Another way to mitigate the impact is to quantify revenue and understand the profitability drivers, uh, what, what’s causing the company to produce rev revenue and grow and, and what revenue, uh, streams are, are most profitable.

And so understand fixed cost and overhead and focus on the areas in which we’re most profitable. I mentioned earlier that the, the capitalization method or a discounting method. And so in a, in a capitalization method, we need to be able to quantify, you know, what, what are the covid years, uh, and why. And, and being able to quantify that and understanding revenue is a big part of that. And then from the, the discounted cash flow method, we need to be able to support projections. So one of the ways in which we can mitigate the risk is being able to understand where our company is going the best we can, business owners wise.

Jaime Davis: What credentials should a person be looking for when they’re choosing a business evaluator to help Them?

David Amiss:The three primary credentials would be CVA, so Certified Valuation Analyst, uh, which is what I am an ABV, which is Accredited and, and Business Valuation. There’s also ASA Accredited Senior Appraiser for some other, I think equit distribution related cases or engagements may come up. Uh, I think CPA is important, someone that understands business, some, someone that understands accounting can speak to language and understand, uh, understand the financials is, uh, it can be helpful Also, CFF certified in Financial Forensics or MAFF, Master Analyst and Financial Forensics, that’s probably a, a whole other podcast.

Jaime Davis: Absolutely. In your experience, how much does a business valuation typically cost?

David Amiss: I don’t know if we talked about it. I don’t think we did, but there, there are two types of evaluations that, uh, that are available under the standards. One is a conclusion of value. And a conclusion of value requires the appraiser to look at all three approaches that we mentioned, uh, asset approach, the income approach, and the market approach is typically more involved in. And the result of that, uh, engagement evaluator, uh, I’m gonna say are our conclusion of value is X and so it carries more weight, if you will, than a calculation of value, calculation of value, uh, under the standards we can, in discussions with management or or the attorney decide which approach we want to, we wanna look at. And so maybe it’s, uh, it’s, it’s an income approach, but the, the results of of that engagement is gonna be the, the results of our calculations of value are our X.

And so if, if something were going to trial, we would, we would most certainly need a conclusion of value, cuz Jaime, if you were on the, on the other side and you said, uh, Amiss, what’s your conclusion of value? And I said, well, I don’t have a conclusion. Uh, you might tear me to shreds. And, uh, so, uh, so sometimes calculations of value can be used for, for mediation or, or internal purposes, uh, at some point in the litigation process. But a conclusion of value we needed later conclusion of value typically range from 15 to 18,000 and a calculation of value from seven to 10.

Jaime Davis: And I believe you and I discussed another type of not really report that you could do, but what is, isn’t there an oral opinion of value? What is that?

David Amiss: So the standards allow us to give an oral report or a, or a written report. And depending on the context and, and the users, uh, of the report of and of the valuation, you may or may not need a written report sometimes that there are things that can be put in an evaluation report that, that are fodder for counsel to, to, uh, push back on and to, and potentially impugn the credibility of the report or, or the result. And so the evaluator, along with the attorney need to be, need to be careful and, and, uh, and thinking about that, uh, one alternative to a written report is an oral report. And, uh, in an oral report, uh, the evaluator, uh, typically, uh, will, uh, do everything that they would normally do in a written report. The, the development standards, uh, are the same. Uh, so they gotta do all the work they would normally do, but in lieu of writing report that may be anywhere from 30 50 to 120 pages, they will give valuation schedules to the users to, so to you, Jaime, and, and potentially the, the spouses, uh, the schedules and those schedules will include the historical financial statements analysis, ratio analysis, trend analysis, and, and all the, all the work financially and schedules that go from beginning to end.

David Amiss:So from the historical information adjustments, normalization, adjustments to the final value of the company, you know, if you’re going to mediation and, and you’re not gonna exchange reports, it, it can be a good tool. Uh, I think it’s a, it’s a facts and circumstances and I, I would never want you, the attorney, I would never wanna advise you, you the attorney or or any, any of your clients, any people listening, you know, to do a or report when, when a written report was needed. And so, but I think that there’re options there. There’re tools in the, in the toolbox if you will.

Jaime Davis: You know, it could be a way to save your client some money if you’re just trying to get a case settled, there’s no litigation, but you need some sort of idea of what the business is worth. I mean, it might be a less expensive option,

David Amiss: I think. So I, I enjoy what I do and, uh, I, I, I look at, uh, what I do is help cross the divide, if you will. There is a divide and the objective is to get across it, something my job or any other evaluator’s job to, to push a conclusion value or a written report or more expensive option when, when something less is there, you know, sometimes we’ll do a calculation for mediation purposes and then it, you know, it doesn’t set on mediation, it goes to trial, and then we’ll, we’ll go do a conclusion of value, and in that case we’ll have to go back and do some more work. Um, but it’s not a, it’s not the calculation on top of the, of the conclusion, but I, but I do want to present options to, to you the attorney or, and to the spouse and to the spouses, uh, see what’s the best way to, to try to get this thing settled.

Jaime Davis: Well, so this is a very basic question, but given the cost associated with a business valuation, I’m sure folks are wondering, how do you know if you really need a business valuation?

David Amiss: Yeah, that’s a good question. Um, I, I have a, a simple tool or a simple guide that this, that essentially acts, uh, like a, a flow chart if you will, just to ask questions. Do I have a business? Do I, do I own a business? And then going from there, you know, is there, I talked about earlier, the asset approach, uh, a lot of times is, is a floor value. And so the assets minus liabilities, it may only be worth a hundred thousand dollars, but cuz that’s just a tangible, that’s just a tangible value, right? There are intangibles such as goodwill or customer list name recognition and assembled workforce, and other things that are intangible value that you may only see through the, through the income approach. And so, you know, do you, do you, if you take your assets minus your liabilities, and, and is there a positive result?

David Amiss: Well, if that’s the case, then there’s probably value. If there’s not, uh, then there’s some questions on the flow chart just to, to say, well, why is that? Is that because your business is early on in its lifecycle? Uh, is it because there’s, there hasn’t been capital, uh, and if you have capital, uh, you could produce a profit, or, or if there are, you know, sometimes with small businesses, people pay, uh, the owners pay themselves salaries that may be higher than or more or exceed reasonable compensation. And so if we adjust those out to a, to a reasonable amount, is there, is there potential income there? And so, uh, it can be a tool, a general tool, um, to at least get you in a direction of knowing, hey, do do I need one or not?

Jaime Davis:If any of our listeners are interested in seeing a copy of that flow chart, is that something that you could share?

David Amiss: No, absolutely. I can share it with you soon as we get off the podcast.

Jaime Davis: All right. That’s great. Do you have any tips for people headed for divorce in situations where a business interest is going to be involved?

David Amiss: Yes, and, uh, and for all that are listening, Jaime didn’t ask me to say this, but, uh, but, but talk to an attorney that hasn’t experienced dealing with BV and ED, uh, uh, with business valuation and equitable distribution context. I, I’ve seen when I, I’ve been in the courtroom and observed, uh, evaluators and business valuation folks that are testifying, uh, an an opposing expert and, and their attorney wasn’t that knowledgeable on business valuation. Uh, and some of the, some of the questions they asked or didn’t ask, or some of the objections that they didn’t make, uh, you know, put the, put the expert and ultimately the, the value of the company and the settlement at at risk. And so as a, as a, as a evaluator, I wanna work with folks that, that have experience dealing with this. And, uh, I can tell you that, uh, if, if anybody’s going through a divorce, um, it’s, it’s good to talk to an attorney that has experience dealing with, with business valuation.

I think the other thing I would mention is, is get your information together. Uh, the soundness of the accounting function, uh, and, and most or all the time that you spend working towards this is, uh, is, is valuable. And so, uh, have a good CPA. The time that you invest in this, it, it’ll help the valuation, it’ll help the evaluation expert deliver a credible report. And at the end of the day, uh, better information going in will produce, uh, a better result, um, and it, uh, and hopefully a settlement in the case and, and potentially reduce the cost of the valuation and the litigation.

Jaime Davis: That’s a great point. I mean, with all the time, effort, don’t forget money that’s going into this report. You want it to be credible, and so you want those underlying financials that are being used for the report to be credible and to be good.

David Amiss: Yep. Absolutely.

Jaime Davis: Well, David, thank you so much for joining us today. If any of our listeners would like to contact you, what is the best way for them to reach you?

David Amiss: Probably email, email address is, uh, damiss. So first name, first initial, and last name, uh, damiss@cricpa.com.

Jaime Davis:I hope you all enjoyed this episode of a year and a day. If you have any suggestions for future episodes, I would love to hear from you. You can email me at jdavis@divorceistough.com. As a reminder, while in my role as a lawyer, my job is to give folks legal advice. The purpose of this podcast is not to do that. This podcast is for general informational purposes only, should not be used as legal advice and is specific to the law in North Carolina. If you have any questions before you take any action, you should consult with a lawyer who’s licensed in your state.