Unvested Restricted Stock Units and double dipping for support- Ky Court of Appeals published divorce opinion

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DUFFY V. DUFFY

Trial court found unvested RSUs were marital property subject to division, although Husband forfeited his right to the RSUs during the dissolution proceedings by leaving his employer two months before the RSUs vested. The trial court did not count the RSU income in setting Husband’s gross income calculation for child support.

 

Husband appealed arguing that the trial court erred in ruling that his non-vested RSUs were divisible as marital property. The Court of Appeals affirmed the trial court holding that the RSUs were “paid” during the marriage and rightly treated as marital property subject to division. The trial court properly found that Husband terminating his employment constituted a dissipation of a marital asset, as the evidence presented to the trial court suggested his employment change was for the sole purpose of depriving Wife of her proportionate share of the marital assets.

 

Wife cross appealed arguing that the trial court erred in failing to factor into Husband’s potential income that had he not resigned, he would have continued to receive RSUs and other bonuses. The Court of Appeals again affirmed the trial court holding that the Penner prohibition against double dipping applies to calculations of potential income as well. The Court could not have properly divided the RSUs as a marital asset and also included them in Husbands income calculation for child support.

 

Digested by Elizabeth M. Howell

 

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