Bitcoin is known as the “gold standard” of cryptocurrency. Chances are you’ve heard of it but may not really understand its importance and growing relevance. In recent years, however, banks, governments and crucially divorce lawyers are beginning to take a much more forensic interest. And if you own bitcoin or have a spouse that does and you’re heading to the divorce courts, it’s essential that your lawyers not only understand this very new type of asset but are familiar with tracing it and valuing it.
So, what is Cryptocurrency?
Essentially cryptocurrency is a virtual currency which has no physical form as it exists only in the online network, that network is completely decentralised so there is no third party bank or government that the currency has to go through, instead, the technology allows users to send bitcoin directly to another person (this allows users to be pseudo-anonymous as details that a bank would usually want to verify identity are not required). The details of the transaction are encrypted, and the transactions are then bundled into and recorded on a “blockchain” the details of which cannot then be changed by anything or anyone and are based purely on a mathematical algorithm.
Why do divorcing couples and lawyers need to know about it?
Just as with cash in the bank or property, cryptocurrency is an asset which the court will have the power to distribute within the divorce case. It follows, therefore, that a holding must be disclosed within the proceedings as both parties are under a duty to provide full and frank disclosure of all their assets at the outset of the case and ongoing. However, for as long as there have been divorces, there have been parties who try to hide assets.
The courts are certainly used to this kind of bad behaviour and have a number of powers at its disposal to deal with offenders. However, bitcoin is a very new type of technology, established only in 2009 and, therefore, is only recently starting to appear in divorce proceedings. Divorce lawyers and the courts are having to learn a whole new language for dealing with this new technology.
The first most important step is to establish that cryptocurrency exists. If it is disclosed by the owner, then all well and good. However, cryptocurrency, by its very nature, is pseudo-anonymous and, because it is unregulated, it is much harder to trace. It is, therefore, much easier for a spouse to either hide the existence of cryptocurrency or the value of their holding than with other kinds of asset.
In order to establish the existence or ownership of cryptocurrency, a search needs to be made of money entering the digital arena. It is much easier to trace cryptocurrencies that are traded via an online exchange and bought with funds from a bank account as that initial transaction can be relatively easily identified. If found that would give a party a strong basis to argue that their spouse owns cryptocurrency and that further investigations should be ordered by the court.
However, once within the digital arena it is much more difficult to trace where the money goes next, or if the initial purchase was made directly. If then moved offline, for example if a person transfers their digital wallet containing their holding onto a USB stick, tracing becomes virtually impossible.
A digital forensics expert will almost certainly be necessary. They can be instructed to search the alleged holder’s computer and email to try and find the relevant purchase transactions and trace the wallet where the cryptocurrency is held. A court order giving permission for this will be necessary and would likely be ordered if there is sufficient evidence (in the form of the initial transaction) or perhaps reasonable suspicion that cryptocurrency exists.
A word of warning however. Care should be taken not to spend more money on hiring professionals to search for the cryptocurrency than what it is worth. Of course, one will not necessarily know how much a holding might be worth until they find it, a very difficult catch 22 situation but one that needs to be considered regularly. A good divorce lawyer will be able to guide a client on this.
What is cryptocurrency worth?
This is perhaps the most difficult question to answer. As with stocks and shares, the valuation can change throughout the divorce process, but with cryptocurrency the market is much more volatile. The value of cryptocurrency is liable to change drastically throughout the divorce proceedings; a spouse with a substantial bitcoin holding at the start of the divorce process might have diminished considerably by the time of final hearing or settlement. It will be imperative, therefore, to obtain a valuation at every stage of the process and prior to any settlement negotiations so that the parties know what they are dealing with
Dr Stephen Castell, commented:
‘Given the high volatility of cryptocurrency prices, and the possibility of compromise, and even theft, if the holding in question is retained only within a centralized exchange (there have been several high-profile instances of compromised cryptocurrency exchanges, and/or such exchanges going bust), the divorce lawyer may decide to seek from the court an order to sell the cryptocurrency at an early point in the proceedings, or, alternatively, to do this, as a matter of prudent protection of asset value, by mutual agreement between the parties. This could remove uncertainty and volatility and fix and secure the value of a cryptocurrency holding in more reliable, more liquid, currencies, such as USD or GBP, to be placed in an escrow bank account pending resolution of the divorce proceedings.’
However, whilst the courts retain their discretionary powers to redistribute assets on divorce in accordance with the section 25 factors it is unclear what powers the court will have to actually redistribute cryptocurrency holdings themselves if they exist only in the network and if there are difficulties with realising their value. As this is new technology and as yet there are no reported cases dealing with these assets giving practitioners guidance on how to advise clients, it is clear we are entering a brave new world. Added to that the fact that there is no regulation it raises questions as to how any Order for Transfer or Sale could be enforced.
Nonetheless, cryptocurrency is here to stay, and the author predicts that this type of asset will become more prevalent as time moves on and the language that lawyers use, and the powers of the courts, will evolve with it.
A City Law Firm recognise digital assets are a valuable commodity that needs addressing in Wills; business transfers and as discussed during divorces. We understand not every divorce financial arrangement is clear cut, so we do get to understand the issues in detail as the landscape changes we are there to move with it
Karen Holden is the Founder of A City Law Firm