                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-1290-17T1


M.G.,
                                       APPROVED FOR PUBLICATION
        Plaintiff-Appellant,
                                             December 26, 2018
v.
                                           APPELLATE DIVISION

S.M.,

     Defendant-Respondent.
____________________________

              Argued December 5, 2018 – Decided December 26, 2018

              Before Judges Alvarez, Reisner, and Mawla.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Middlesex County,
              Docket No. FM-12-0446-15.

              Dale E. Console argued the cause for appellant.

              Gregory S. Baxter argued the cause for respondent
              (Caruso & Baxter, PC, attorneys; Gregory S. Baxter,
              on the brief).

        The opinion of the court was delivered by

MAWLA, J.A.D.
      Plaintiff M.G.1 appeals from a provision of a June 16, 2017 amended

final judgment of divorce and an October 10, 2017 order denying relief from

part of that judgment. The issue is whether the portion of restricted stock

transferred to plaintiff by his employer, which vests after the date of the

complaint, is subject to equitable distribution if the vesting is contingent upon

plaintiff's post-complaint employment efforts.      The trial judge concluded

defendant S.M. was entitled to fifty percent of all stock awards made before or

near the date of complaint. However, because the judge's decision is contrary

to the evidence and his credibility findings, and mistaken as a matter of law,

we reverse and remand for further proceedings consistent with this opinion.

      The following facts are taken from the record. The parties were married

in May 1998. In 2001, plaintiff became employed as a principal consultant for

a large multi-national corporation.    Beginning in August 2003, and every

August thereafter until 2010, plaintiff received a stock award from his

employer. According to plaintiff's testimony and a corresponding summary,

the stock awarded would vest in yearly tranches.         For example, plaintiff

received 490 shares in 2003. Those shares began to vest at a rate of 174 shares

per year commencing in 2011. A similar vesting schedule was applied to the


1
    We use initials to protect the confidentiality of the parties' financial
information.


                                                                         A-1290-17T1
                                       2
subsequent stock transfers, such that the stock awards and the vesting occurred

on a rolling basis.

      Plaintiff filed a complaint for divorce on July 28, 2014. By then, he had

been granted eight stock awards. However, only three had fully vested and the

remainder were due to vest post-complaint, beginning on August 31, 2014, and

every August thereafter.

      At trial, plaintiff also produced an informational document from his

employer entitled "Overview of Stock Awards," which plaintiff, on

questioning by the trial judge, confirmed contained the employer's policy. In

pertinent part, the document stated as follows:

             Stock-based compensation is a key component of our
             reward program . . . because it provides an ownership
             stake in the company's success for employees who
             contribute over the long term. To preserve this core
             element of our culture, in July 2003, [we] decided to
             grant employees stock awards, which represent the
             future right to receive shares of . . . stock when a
             vesting requirement is satisfied.

                      ....

             At [our company] we believe that employees who
             become shareholders maintain a long-term, vested
             interest in sustained individual excellence and the
             overall success of the company.

                      ....

             Each eligible employee's annual stock award grant is
             based on his or her impact, level, and country.

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                                       3
      Furthermore, plaintiff testified the stock plan was

            the way [the employer] retain[s] their employees and
            they want to make sure that you consistently perform
            better so if the year that it vests, if you don't perform
            well, it gives them reason to let you go and you don't
            get those [stocks], so you have to be consistently
            performing at a better level to be able to take
            advantage of the stocks that they give you.

      Following the judge's questioning, plaintiff's attorney asked plaintiff:

"Now with regard to equitable distribution . . . do you acknowledge that some

of those stocks should be distributed to [defendant]?"       Plaintiff agreed he

would share the stocks "already vested" with defendant as equitable

distribution. Defendant did not refute any of plaintiff's testimony regarding

the stock plan, the awards he received, the conditions for vesting, or the basis

on which the employer made the awards.

      Following the conclusion of the trial, the judge rendered a thirty-nine

page written decision addressing custody and parenting time, equitable

distribution, alimony, child support, and counsel fees. In the section of his

opinion addressing credibility the judge opined:

                   The [c]ourt finds [p]laintiff to be credible.
            After observing him during his testimony, the [c]ourt
            determined that he was honest and sincere. His
            description of events was logical and supported by the
            facts.




                                                                        A-1290-17T1
                                       4
            On the other hand, the [c]ourt does not find
      [d]efendant credible.    Many of her claims were
      unsupported by facts or reason.

Regarding plaintiff's restricted stock units, the judge continued:

             The restricted stock units ("RSUs") awarded to
      [p]laintiff as part of his compensation package vest
      over a five-year vesting schedule. As the stocks vest,
      they are reflected in [p]laintiff's W-2 for that year.
      Plaintiff concedes that [d]efendant is entitled to share
      in the [RSUs] that were vested as of the date of filing.

             Plaintiff takes the position that the RSUs
      awarded on August 31, 2014 are exempt from
      equitable distribution based upon the post-[complaint]
      status of their receipt. This is incorrect. The 2014
      award, not the vesting of that award, created a marital
      asset which will vest in five years and whose value is
      as of yet uncertain. The 2014 award was made in
      recognition of [p]laintiff's past job performance. Said
      past performance was during the marriage, making the
      units subject to equitable distribution. In Pascale v.
      Pascale, [140 N.J. 583 (1995),] the Court found that
      stock options awarded after the marriage has
      terminated, but obtained as a result of efforts
      expended during the marriage should be subject to
      equitable distribution.      ([See also] Reinbold v.
      Reinbold, 311 N.J. Super. 460 (App. Div. 1998)
      noting that portions of a retirement incentive package
      offered after the divorce were based upon pre-
      complaint efforts and subject to equitable
      distribution.)

             In the within matter, the [c]ourt finds that the
      RSUs awarded to [p]laintiff up to and including the
      August 2014 award are the result of pre-filing, marital
      efforts, and are thus subject to equitable distribution.




                                                                     A-1290-17T1
                                  5
Accordingly, the judge imposed a constructive trust to facilitate distribution of

the unvested stock to defendant.

      After entry of the divorce, plaintiff filed a motion seeking various forms

of relief, including modification of the judgment pursuant to Rule 4:50-1, as it

pertained to the restricted stock. In the certification accompanying the motion,

plaintiff stated:

             Additionally, I believe the [c]ourt erred and there is a
             mistake with regard to my stock options. The [c]ourt
             analyzed my . . . stock . . . [in its] decision and cited
             [Pascale] . . . specifically finding that RSUs award[ed]
             to plaintiff up to and including the August 2014 award
             are the result of pre-[complaint] marital efforts and
             thus subject to equitable distribution. I enclose . . .
             literature from . . . my employer[] regarding options.
             The information provided . . . clearly indicates that the
             "awardees's rights in the [stock awards] shall be
             affected, with regard to both vesting schedule and
             termination, by leaves of absence, changes in the
             number of hours worked, partial disability, and other
             changes in awardee's employment status as provided
             in the company's current policies for these matters."
             Clearly, [the] stock[s] were performance options and a
             reward for staying with my employer and a reward for
             future performance. As such, . . . defendant should
             not share in these options that have not vested as of
             the date of filing.

      The document plaintiff referenced in his certification was his employer's

stock award agreement pursuant to its stock plan. In addition to the language

plaintiff quoted from the document, it also provides as follows:




                                                                         A-1290-17T1
                                        6
            2. Vesting Schedule and Conversion of [Stock
            Awards].

            (a) Subject to the terms of this Award Agreement and
            the Plan and provided that Awardee remains
            continuously employed through the vesting dates set
            out below, the [stock awards] shall vest and be
            converted into an equivalent number of Common
            Shares as set out below[.]

            [Emphasis added.]

Notably, the employer's cover letter enclosing stock plan documents stated:

"We look forward to you making a positive impact on [the company's] future

success and sharing in that success as a shareholder in our Company."

      The judge denied plaintiff's motion, concluding that:

            A presumption exists that stock awards result from
            joint, marital efforts and are thus subject to equitable
            distribution. Pascale v. Pascale[.] . . . Plaintiff's
            literature from [his employer] going over the general
            details of the stock plan fails to overcome this
            presumption that it was received through spousal
            efforts.

This appeal followed.

                                       I.

      We defer to a trial judge's factfinding "when supported by adequate,

substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)

(citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J 474, 484 (1974)).

"We do not weigh the evidence, assess the credibility of witnesses, or make



                                                                        A-1290-17T1
                                       7
conclusions about the evidence." Mountain Hill, LLC v. Twp. of Middletown,

399 N.J. Super. 486, 498 (App. Div. 2008) (quoting State v. Barone, 147 N.J.

599, 615 (1997)). We also recognize the Family Part has "special jurisdiction

and expertise in family matters," which often requires the exercise of reasoned

discretion. Cesare, 154 N.J. at 413. Thus, if we conclude there is satisfactory

evidentiary support for the Family Part judge's findings, our "task is complete

and [we] should not disturb the result." Beck v. Beck, 86 N.J. 480, 496 (1981)

(quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)).

      Although our "[d]eference is especially appropriate 'when the evidence

is largely testimonial and involves questions of credibility[,]'" Cesare, 154 N.J.

at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)),

"[r]eversal is warranted when the trial court's factual findings are 'so

manifestly unsupported by or inconsistent with the competent, relevant and

reasonably credible evidence as to offend the interests of justice.'" Slutsky v.

Slutsky, 451 N.J. Super. 332, 344 (App. Div. 2017) (quoting Rova Farms, 65

N.J. at 484). Furthermore, "legal conclusions, and the application of those

conclusions to the facts, are subject to our plenary review." Reese v. Weis,

430 N.J. Super. 552, 568 (App. Div. 2013).

      "A Family Part judge has broad discretion . . . in allocating assets

subject to equitable distribution." Clark v. Clark, 429 N.J. Super. 61, 71 (App.



                                                                         A-1290-17T1
                                        8
Div. 2012). However, we reverse if a judge's "findings were mistaken[,] or . . .

the determination could not reasonably have been reached on sufficient

credible evidence present in the record[,]" or "failed to consider all of the

controlling legal principles." Gonzalez-Posse v. Ricciardulli, 410 N.J. Super.

340, 354 (App. Div. 2009); see also Wadlow v. Wadlow, 200 N.J. Super. 372,

382 (App. Div. 1985) (reversal is required when the results could not

"reasonably have been reached by the trial judge on the evidence, or whether it

is clearly unfair or unjustly distorted by a misconception of law or findings of

fact that are contrary to the evidence" (quoting Perkins v. Perkins, 159 N.J.

Super. 243, 247 (App. Div. 1978))).

                                      II.

      "[T]he goal of equitable distribution . . . is to effect a fair and just

division of marital [property]."   Steneken v. Steneken, 183 N.J. 290, 299

(2005) (alterations in original) (Steneken v. Steneken, 367 N.J. Super. 427,

434 (App. Div. 2004)). After a trial judge identifies the marital assets and

determines the value of each asset, the judge must decide "how such allocation

can most equitably be made." Rothman v. Rothman, 65 N.J. 219, 232 (1974).

This demands more than simply "mechanical division[,]" it requires a

"weighing of the many considerations and circumstances . . . presented in each

case." Stout v. Stout, 155 N.J. Super. 196, 205 (App. Div. 1977), overruled on



                                                                        A-1290-17T1
                                       9
other grounds by Peterson v. Peterson, 85 N.J. 638, 643, n.2 (1981). This is

because equitable distribution "reflects a public policy that is 'at least in part

an acknowledgment that marriage is a shared enterprise, a joint undertaking,

that in many ways [] is akin to a partnership.'" Thieme v. Aucoin-Thieme, 227

N.J. 269, 284 (2016) (quoting Smith v. Smith, 72 N.J. 350, 361 (1977)

(quoting Rothman, 65 N.J. at 229)).

      However, an equitable distribution does not presume an equal

distribution. See Rothman, 65 N.J. at 232 n.6. Rather, N.J.S.A. 2A:34-23.1,

requires an equitable distribution be "designed to advance the policy of

promoting equity and fair dealing between divorcing spouses." Barr v. Barr,

418 N.J. Super. 18, 45 (App. Div. 2011). This policy is best implemented by

evaluating the facts and evidence associated with each asset.

      On appeal, plaintiff argues the trial judge erred because he ignored the

evidence and testimony that post-complaint efforts were required in order for

the stock to vest. Plaintiff argues the judge's reliance on Pascale is unavailing

because that case addressed whether stock acquired after the date of complaint,

as a result of services during the marriage, was subject to equitable

distribution. Plaintiff asserts Pascale did not address a scenario where vesting

was subject to a contingency, namely, a party's post-complaint employment

efforts.   Plaintiff points to case law from other jurisdictions which have



                                                                         A-1290-17T1
                                       10
established a multi-factor analysis to address the issue raised here, and

additionally urges us to adopt a coverture fraction methodology for the

equitable distribution of stock pursuant to Marx v. Marx, 265 N.J. Super. 418

(Ch. Div. 1993).

                                     III.

      Increasingly, executive compensation has been achieved through means

other than salary and retirement assets.    Indeed, "[m]any companies favor

stock-based compensation plans to entice, retain, motivate, and attract their

employees." Donna Pironti & Mitchell Benson, Performance Awards Through

Employee Stock Compensation Plans: Tax and Divorce Issues, A.B.A. Sec. of

Fam. L.: Fam. Advoc., Fall 2018, at 17. Generally,

            [s]tock grants are an employee retention mechanism,
            as they contain vesting features that are triggered
            during a period set by the employer. The vesting date,
            the date on which the employee has the right to
            receive stock . . . is often based on the employee's
            longevity and/or specific performance. An employee
            may receive annual grants only a portion of which vest
            (and are then available for sale) when the employee
            achieves certain goals. Stock grants have more value
            to an employee because their outflow (cost) is equal to
            the tax on the value of the stock.

            [Ibid.]

      In Pascale, the Supreme Court considered the equitable distribution of a

spouse's stock options received throughout and after the marriage. 140 N.J. at



                                                                      A-1290-17T1
                                      11
607.   Specifically, the Court addressed whether a portion of the options

awarded ten days after the date of complaint were subject to equitable

distribution. Ibid. The trial court determined the options received after the

date of complaint were not subject to equitable distribution. Id. at 608. On

appeal, we concluded one of the two awards nearest the date of complaint

warranted inclusion in equitable distribution. Ibid.

       The Supreme Court stated, where equitable distribution is sought of

assets received after the date of complaint

            [t]he focus thus becomes whether the nature of the
            asset is one that is the result of efforts put forth
            "during the marriage" by the spouses jointly, making it
            subject to equitable distribution.

                   To refute such a presumption, the party seeking
            exclusion of the asset must bear "'the burden of
            establishing such immunity [from equitable
            distribution] as to any particular asset.'"

            [Id. at 609 (alteration in original) (quoting Landwehr
            v. Landwehr, 111 N.J. 491, 504 (1988)).]

       The Court concluded

            stock options awarded after the marriage has
            terminated but obtained as a result of efforts expended
            during the marriage should be subject to equitable
            distribution. The inequity that would result from
            applying inflexibly the date of complaint rule is
            obvious. [One spouse] would be denied the benefit of
            stock options that were earned by [the other spouse]
            during the marriage, but were not awarded to her until
            slightly after the marriage terminated.          Serious

                                                                       A-1290-17T1
                                       12
             mischief could arise under such a hard-and-fast rule.
             For example, a spouse considering divorce might file
             her complaint just before she expects to receive a
             large bonus or commission, simply to deny her spouse
             the benefit of that asset when the court determines the
             value of the marital estate.

             [Id. at 610.]

      The considerations in this case differ from those in Pascale, and the trial

judge's exclusive reliance on its holding did not address them.        Here, the

analytical framework is not when the stock was received, but rather, the efforts

required for it to vest.

      Plaintiff's unrefuted testimony was clear that post-complaint efforts were

necessary to cause the stock, which had not vested as of the date of complaint,

to become payable. The plan documents and literature adduced in evidence at

trial, and attached to plaintiff's post-judgment motion, stated vesting would

occur dependent upon plaintiff's post-complaint performance.           We reject

defendant's argument that "performance" in this case required plaintiff merely

to continue living and go to work.          Nothing in the record supports this

assertion. Indeed, all of the objective evidence in the record demonstrates

much more was required of plaintiff as a high-level corporate employee in a

highly competitive industry.

      As we noted, plaintiff's employer described the stock plan as a "reward

program . . . because it provides an ownership stake in the company's success

                                                                         A-1290-17T1
                                       13
for employees who contribute over the long term."          Company literature

explained the stock grants were to "maintain a long-term, vested interest in

sustained individual excellence and the overall success of the company." This

language does not suggest the stock would vest through mere continued

employment without consideration of plaintiff's level of proficiency. Nor does

this language suggest the stock awards were for work already performed.

      The company plan documentation, and other literature in the record, was

consistent with plaintiff's testimony. Plaintiff explained the purpose of the

stock award was to retain him and assure he "consistently perform[ed] at a

better level." As plaintiff noted, "if you don't perform well, it gives them

reason to let you go and you don't get those [stocks.]"

      The trial judge misapplied his discretion because in the absence of any

evidence or testimony to the contrary, he concluded the stock was earned for

work performed during the marriage. The judge's findings were unsupported

by the evidence and inconsistent with his own credibility findings. As we

noted, the judge found plaintiff's testimony entirely credible, and reached the

opposite conclusion regarding defendant. Our review of the record confirms

the judge was required to reach a different result regarding the unvested stock

awards in existence as of the date of complaint.




                                                                       A-1290-17T1
                                       14
      Turning now to the mechanics of distribution, at oral argument and in

his brief, plaintiff suggests we follow a coverture fraction analysis, or

alternatively, consider applying the concept of "marital momentum" to address

the equitable distribution of the unvested stock awards. The concept of

                   "[m]omentum of the marriage" recognizes the
            reality that in many instances, one's occupational
            efforts often start off by yielding small and modest
            level earnings. However, these efforts may serve as a
            strong springboard into higher future earnings.
            Through continuing education, experience, and
            perseverance, it is fairly common for the fruits of
            one's occupational labors to ripen well after the seeds
            are planted.

            [Dudas v. Dudas, 423 N.J. Super. 69, 78 (Ch. Div.
            2011).]

In the context of restricted stock units, it has been suggested "[t]he coverture

fraction allocates the award as marital and nonmarital based on the vesting

schedule, with the numerator being the time period from the date the award

was granted to the cutoff date and the denominator being the period from the

date of grant to the vesting date."    Sandra R. Klevan, Beyond Salary and

Bonus: The Where, What, and How of Complex Executive Compensation from

a Divorce Perspective, A.B.A. Sec. of Fam. L.: Fam. Advoc., Fall 2018, at 12,

15.

      We find neither method appropriate to determine whether the unvested

portion of the stock award is attributable to the marriage. In instances where

                                                                        A-1290-17T1
                                      15
an asset has been granted after the date of complaint, these principles are of

little help because they presume a marital component attributable to the asset

in question.

      Indeed, in Thieme, a spouse who was employed for a closely held

company received a "closing bonus" when the company was sold after the

parties had been divorced. 227 N.J. at 272-73. The parties were married for

fourteen months, but had cohabitated prior to the marriage for eight years. Id.

at 272. Following the divorce, Aucoin-Thieme filed a motion seeking a share

of the closing bonus, and following a trial, she was awarded a portion of the

bonus attributable to Thieme's work during the marriage. Id. at 273. The trial

judge applied a coverture-like formula to determine Aucoin-Thieme's share as

follows:

               [T]he trial court allocated the $2,250,000 [c]losing
               [b]onus. It concluded that in the course of his
               employment, Thieme earned the [c]losing [b]onus at a
               rate of $14,423 per month. Multiplying that amount
               by a factor of fourteen, the court ruled that during the
               parties'   marriage,     Thieme      earned     deferred
               compensation in the amount of $201,923. The trial
               court then determined that Thieme's net income from
               the allocated portion of his [b]onus, after the
               deduction of taxes, was $100,961. It subjected that
               amount to equitable distribution under N.J.S.A.
               2A:34-23.1, awarding thirty percent of that amount, or
               $30,288, to Aucoin-Thieme.

               [Id. at 281.]



                                                                          A-1290-17T1
                                         16
      Aucoin-Thieme appealed arguing the trial court had erred by limiting the

amount subject to equitable distribution to the work performed by Thieme

during the marriage. Id. at 282. The Supreme Court found the trial court had

correctly determined that the portion of the bonus for work performed prior to

the marriage was not subject to equitable distribution. Id. at 287. However,

the Court concluded equitable principles required Aucoin-Thieme receive a

greater portion of the bonus, whose payment was deferred until after the

divorce because

            the prospect that Thieme would be generously
            compensated was a significant factor in the parties'
            personal and financial planning from the early stages
            of their relationship. Thieme and Aucoin-Thieme
            each relied on the expectation of deferred
            compensation if [the company Thieme worked for]
            were sold as they made important decisions for
            themselves and their family.

            [Id. at 290.]

      The Court held

                   As a remedy, a percentage of the portion of the
            [c]losing [b]onus that Thieme earned during the period
            in which the parties cohabited prior to their marriage
            should be deemed to be held by Thieme in
            constructive trust for Aucoin-Thieme. We make no
            determination as to the precise time period for which
            the [c]losing [b]onus should be shared by the parties,
            [or] the percentage of the [c]losing [b]onus that should
            be allocated to Aucoin-Thieme to avoid unjust
            enrichment[.]



                                                                       A-1290-17T1
                                      17
            [Id. at 293.]

      Thus, Thieme makes it clear the court can reach beyond the parameters

of the marriage and consider work performed outside of the marriage to

effectuate an equitable distribution. Use of a coverture formula is ill-suited to

make an equitable distribution in such a situation. Moreover, in this case, and

unlike Thieme, there is no evidence in the record to support the conclusion the

parties expected or relied upon the stock awards as a means of making future

financial plans for the family. Plaintiff was still required to work and perform

at a high level to obtain vesting. In this regard, his receipt of awards following

the complaint date would not constitute an unjust enrichment. For the same

reasons, a consideration of the marital momentum is also inapplicable.

      Notwithstanding, plaintiff points to decisional law from other non -

community property jurisdictions, namely, Baccanti v. Morton, 752 N.E.2d

718 (Mass. 2001), which we find offers a more precise and nuanced approach

to the issue.   In Baccanti, one spouse was employed as a manager in a

company and had been granted stock options, which had not vested. Id. at

722, 725.    The trial judge awarded the supported spouse one-half of the

options. Id. at 722, 725. On appeal, the employee spouse argued the options

were not subject to equitable distribution because they would not vest until

after the divorce. Id. at 725. Alternatively, he argued that only the "options



                                                                         A-1290-17T1
                                       18
attributable to efforts he expended during the marriage should be subject to

division." Ibid.

      After canvassing decisional law from other jurisdictions, the Supreme

Judicial Court of Massachusetts noted

            [m]ost courts . . . have held that stock options are
            marital property only to the extent that they reflect
            efforts expended during the marriage. . . .

                   ....

                  As a general matter, we agree with the majority
            of State courts that have considered this issue. Their
            approach focuses on the parties' respective
            contributions in acquiring the asset, rather than on the
            date that the options were granted.

            [Id. at 727, 728 (citations omitted).]

      The Baccanti court added:

            there may be circumstances, such as a long-term
            marriage in which both parties have contributed to the
            "partnership" and the options are exercisable soon
            after the divorce, where the judge finds that stock
            options should be deemed wholly marital property
            even though the options were given for services to be
            performed in part after dissolution of the marriage. In
            these cases, the judge must determine the extent of
            each spouse's contribution to the asset.

            [Id. at 728-29 (citing Pascale 140 N.J. at 610.)]




                                                                       A-1290-17T1
                                        19
      The court then set forth a specific, multi-part approach for trial courts to

follow in determining whether and to what extent stock options should be

included in the marital estate:

                  [T]he judge must determine if the options were
            given for efforts expended before, during, or after the
            marriage. This requires a finding as to the reason (or
            reasons) for which the options were given (i.e., for
            past, present, or future services). In making such a
            finding, the judge may look to the employee's stock
            option plan, testimony from the employee or a
            representative of the employer, or testimony from an
            expert witness, if any such evidence is offered. . . .
            The judge also may consider any other relevant factors
            or circumstances surrounding the grant, including
            whether the options were "intended to (1) secure
            optimal tax treatment, (2) induce the employee to
            accept employment, (3) induce the employee to
            remain with the employer, (4) induce the employee to
            leave his or her employment, (5) reward the employee
            for completing a specific project or attaining a
            particular goal, [or] (6) be granted on a regular or
            irregular basis." . . .

                  The party challenging the inclusion of the
            options in the marital estate (presumably, the
            employee who was given the options) has the burden
            of proving that the options were given for future
            services to be performed after dissolution of the
            marriage. In addition, this party has the burden of
            establishing that the non-employee spouse did not
            contribute to the employee spouse's ability to acquire
            the options at issue and, for that reason, the value of
            the options either in whole or in part should not be
            considered part of the marital estate. . . .

                  If the party with the burden of proof establishes
            that the options were given in whole or in part for

                                                                         A-1290-17T1
                                       20
             future services to be performed after dissolution of the
             marriage, and the judge determines that equity
             requires that the options be apportioned, the judge
             must calculate the portion of the options that properly
             may be included in the marital estate. 2

             [Id. at 729-30 (alteration in original) (citations
             omitted).]

      We adopt the rubric suggested in Baccanti, with slight modifications and

hold as follows:

      (1) Where a stock award has been made during the marriage and vests

prior to the date of complaint it is subject to equitable distribution;

      (2) Where an award is made during the marriage for work performed

during the marriage, but becomes vested after the date of complaint, it too is

subject to equitable distribution; and

      (3) Where the award is made during the marriage, but vests following

the date of complaint, there is a rebuttable presumption the award is subject to

equitable distribution unless there is a material dispute of fact regarding

2
   As to the calculation to be performed by the trial judge, the court noted the
majority of jurisdictions "apply some variation of a 'time rule' . . . whereby
unvested options are apportioned based on the time that the employee both
owned the options and was married and the time from issuance of the options
to vesting." Id. at 730. However, citing the broad discretion possessed by its
family court judges, the court found "that one formula will not necessarily
work in every case" and declined to adopt the time rule as the exclusive means
of dividing the asset. Id. at 731. For reasons we have already expressed, and
because Family Part judges have broad discretion pursuant to N.J.S.A. 2A:34-
23.1, we decline to adopt a formulaic approach as well.


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                                         21
whether the stock, either in whole or in part, is for future performance. The

party seeking to exclude such assets from equitable distribution on such

grounds bears the burden to prove the stock award was made for services

performed outside of the marriage. That party must adduce objective evidence

to prove the employer intended the stock to vest for future services and not as

a form of deferred compensation attributable to the award date. Such objective

evidence should include, but is not limited to, the following: testimony from

the employed spouse; testimony of the employer's representative; the stock

plan; any employer correspondence to the employed spouse regarding the

award; and the employed spouse's stock plan statements from commencement

of the award and nearest the date of complaint, along with the vesting

schedule.

      Had the trial judge applied these principles to the evidence before him,

plaintiff would, for example, have handily rebutted the presumption the

August 31, 2014 award was entirely subject to equitable distribution. Indeed,

plaintiff's testimony, the stock plan award correspondence, award and vesting

schedules, and the stock plan itself, strongly suggest the unvested awards were

either in whole or in part unattributed to the marriage. Thus, to that extent, the

stocks would not be subject to equitable distribution. We recognize there was

little guidance for the trial judge on this matter. Nor did the parties have the



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                                       22
benefit of this opinion in presenting their arguments to the trial court. For

these reasons we reach no final conclusion and remand to the judge for further

proceedings and to make further findings pursuant to N.J.S.A. 2A:34-23.1 and

the factors discussed above.

      Reversed and remanded. We do not retain jurisdiction.




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