In selecting a proper valuation date for an active business asset that needs to be equitably distributed as an incident to a divorce, judges and matrimonial practitioners alike now recognize they can no longer rigidly apply archaic law to our incontrovertibly new, unpredictable and often volatile economic times.
Historically, the courts applied a simple test in determining whether a particular asset should be valued as of the date of commencement or the date of trial. Essentially, if the asset’s growth or decline was attributable in part to the efforts of the spouse in control of that asset, then the proper valuation date was almost universally set as of the date of the commencement. In contrast, those assets that grow or decline based solely on market fluctuations, were and continue to be valued as of the date of trial.1
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