First, selecting stocks based on fundamental valuation is the very essence of active management.

FORBES: Investing in Style with Index Funds

In essence, the judge could deem a normally active asset (the business) to be a passive asset and therefore would use the trial date as the valuation date rather than the DOS (or commencement of the divorce action in New York).

FORBES: How the Valuation Dates of Different Assets Are Decided During Divorce