In the case of divorce, not only the property but also the shares in the business are divided, and it is not important that only one or both of the spouses are involved in the business, but it is still necessary to separate if the business was officially registered during the period when the marriage was in force.
And those who think that life may be a cool thing, and at one point they will be the founders of a successful firm, and they will enter into pre-marriage agreements, and they will be able to protect their private business from the abuse of a double partner in divorce, and they will be able to sign a peace agreement that will also take into account the distribution of their shares in the business.
However, much more often than not, what was acquired during marriage is divided according to the law, i.e. equally between husband and wife.
Sharing of the share in the DSS in divorce
Let's start by learning about the concept of statutory capital.Statutory capital refers to the amount that was paid by the founder at the time of the company ' s registration.
These funds serve as guarantors to creditors; the capital then consists of the separate value of each share; this is the share of the spouse to be shared through the court.
For example, if the entire company is worth 10 million and the husband has a share of 2 million, 2 million will be shared, not 10 million. The remaining 8 million are likely to be accounted for by other founders and have no relationship with the principal person in the divorce process.
If the husband/wife is a business
It doesn't matter which spouse owns the business.A priori, any expenditure and financial investment is considered to have been made from the family budget, which consists of general pensions, salaries and benefits.
Accordingly, both had a hand in the creation or purchase of a share in the CBO, and there were rare cases in which one of the spouses had been able to prove that money had not been systematically deposited into the general pool.
As a result, one earns and drags one family and the other has a parasitic lifestyle; unfortunately, such precedents can be attributed to exceptions rather than to the norm.
Joint venture
The shares of the husband and wife in the joint venture are divided in half.It doesn't matter if they own equal parts, or the founder is just one of them.
If you divorce them, and if you separate them together, they will be cut off with justice, in accordance with the law.
How do we split up the firm?
In case law, the division follows the following pattern:
- The financial value of the spouse ' s share of the business is calculated, divided in half, and half of the parent spouse pays the second as compensation;
- The business is going away with a hammer, and the money is shared equally, and the option is not suitable for cases where the LA is the child of one of the spouses he has "drank" with his own hands; leaving a company in which a lot of effort has been invested that can generate much revenue in the future will not be accepted by everyone; therefore, the payment of compensation is preferable;
- It is being reorganized into two subsidiaries owned by spouses;
- The option is less frequent, but the court ' s decision will not be able to challenge even other business participants who disagree with it; sometimes the case ends in arbitral tribunals, where claims are filed to add to the group of founders a spouse who had no previous relationship to the business, but who has received compensation in kind; and the arbitral tribunal agrees that, once a business interest is awarded, the spouse is entitled to property rights, but does not automatically become one of the founders.
It is possible to request the division of property even during marriage without waiting for divorce.
The latter measure is not very popular, as former spouses usually become a failed campaign.
The success of commercial activity is based on strong partnerships, which are rare among people with "formers", and there are private cases where there is a ban on the entry of new founders in the internal documentation.
Monetary compensation for the second spouse ' s share
Monetary compensation shall be paid by the former spouse to his or her second half in full, within a period to be fixed by the court.
If the business is prosperous, it is easier to borrow from the next of kin, or to make a loan in order to pay off the debt owed to the spouse.
By the way, that's what many do when the business is in a state of decline.
Division of the enterprise into several new enterprises
Some couples provide for the worst outcome of the case — divorce — even before the marriage is concluded; for this reason, several subsidiaries, which together form one common business, are formed in advance.
When the property is divided into each of the spouses, a firm departs from each of the spouses, a step that greatly simplifys the procedure, and there is also a practice of reorganization of the limited liability society.
There are only two options for the reorganization of the GLD:
- SelectionIn this case, there is another start-up business that is being built on the basis of capital flows, and the start-up business continues to operate as before;
- Segregation.Two new organizations are being created on the basis of the primary organization, which, in turn, ceases to operate and is being dismantled, and two different "ships" are moving freely under the direction of the new "captains" (former spouses).
The reorganization of the GTO will be financially costly, and it will be necessary to gather the founding board, agree on a reorganization, register a new company, approve its charter.
Sales of shares (business liquidation)
The liquidation is accompanied by the collection of the founders, the negotiation of the decision to sell, the search for the buyer, the conclusion of the contract of sale and the registration of the transaction.
The funds received are divided either in half by law or in the shares specified in the peace agreement by the marriage contract.
How does the statutory capital share when a marriage is dissolved?
Statutory capital is the basic amount to be divided, no matter what the assets are and what the value of the business is.
World property-sharing agreement
All you have to do is pay for a notary who will not only confirm the document but also verify its validity.In addition, the spouses will be able to reflect all the nuances of the joint budget and business in the peace agreement.
Many of these aspects may not be taken into account by the court, and in family matters, it is known that no one is better than the couple itself.
Judicial practice
In accordance with the provisions of the UK, his wife wanted to be compensated for half the value of her husband ' s share; the defendant provided the court with conclusive evidence that his wife had not worked for improper reasons and spent money on gambling.
In the years of marriage, the family budget had not been replenished, nor had she invested a penny in the business, and the husband's expenses were taken care of; as a result, the court took note of the defendant's evidence, and the claim was denied.
In another case, a citizen of Yvchenko filed a claim for the division of property with the court; his wife had a share in the DHS; the court ordered the division of the defendant ' s share in half and the payment of compensation to the former spouse.
Unfortunately, the respondent did not have the necessary amount, so she had to sell her share to another founder and give it to the former spouse.
A citizen, Aleksin, filed a lawsuit in court, demanding that his wife ' s share of the OLS be divided in accordance with the law.
The defendant submitted documents to the court indicating that she was the founder one year before the marriage.
The Court took into account its evidence and held that the LSA ' s share could not be attributed to property acquired jointly; the claim was denied.
A marriage contract at the beginning or a peace agreement at the end of a couple's relationship is the best way to share property; serious businessmen, traders, should learn to negotiate, because the ability to find a common language is considered a key to the success of business.
A bad example and reputation would be a noisy divorce and a long tail from litigation with an ex-husband who would demonstrate the insolvency of the founder of the firm as a "negotiator"; perhaps such an aspect would encourage the conclusion of a bilateral contract.
How do you split a business in a divorce?
The division of business in divorce is a common situation in couples where the husband (wife) acts as an entrepreneur and provides for the family. As long as the man and woman live in peace and harmony, there are no questions.
The situation is different when it comes to divorce, and it has to be decided how to divide business properly.
How to divide the IP's assets and the GCO's? How to calculate the company's value in order to determine the spouse's share? Can the matter be resolved in a friendly and non-judicial manner? These and other nuances are discussed below.
The procedure for the division of property is described in the UK of the Russian Federation. For example, article 34 provides a list of assets and profits that fall within the category of joint gains., (i.e., G. and others).
What do we consider for our mates?
If one of the spouses does not engage in business and does not know the nuances of the process, he or she requires that the firm be sold and the funds obtained be divided according to the law, the option may be that the spouse (the person who did not do business) agrees to carry out his or her part and obtain compensation for it.
Judicial practice shows that in most cases business is sold, after which money is shared between spouses.
In a situation where the husband (wife) is the co-owner of the company, the share in the GCO is divided, the most difficult being that one of the divorcers owns a full package (100 per cent) of the assets.
The main question is who will be the head of the organization, the ex-husband or wife.
If continued, conflicts would inevitably lead to a deterioration in the performance of the enterprise and, in the future, to the cessation of activities.
There are hundreds of cases in which successful companies have ceased to operate after the divorce of the owners, where the dispute has been brought out of the family and has become the main problem of the corporation. The result is the inability to continue, to dismiss employees, to gradually reduce profits and to lose liquidity.
It is important to understand that it is not the organization ' s property that is divided, but the founder ' s share; the fault of many of the spouses who are planning to divorce is that they want to take possession of the property of the CBO; this is not possible, because the lawman also has certain rights, including property.
If the spouses have acquired shares in a company in a joint life, the assets are also divided in half; the situation becomes more difficult if the shareholders are not permitted by the company ' s statutes or other rules established at the legislative level; in such circumstances, the best solution is to sell the second spouse ' s share.
What can't be shared?
Article 36 of the Code of Criminal Procedure stipulates that in the course of divorce, it is prohibited to share property acquired prior to marriage, gifted or inherited; knowing this characteristic, the spouse may give part of the business in order not to give it to the husband or wife.
There is an option where part of the company is registered as a partner who gives the facility to a third person (the entrepreneur), which works but requires increased transaction costs and taxes.
In addition, the second spouse has the right to bring a case before a court and to request recognition of the implausibility of such an operation (the relevant rules are laid down in the Criminal Code of the Russian Federation).
Business Division IP
When the debt is divided, the purposes for which the money is spent are assessed. If the profits are received in the family and are shared, the debts are divided according to the share of each spouse's property. (Article 39, para. 3) In a situation where the husband (wife) has spent money on personal needs, the debt is generally an economic risk and becomes a personal obligation of the debtor IP.
Determination of the value of the GLD share
As noted, in the case of a company (AO or SLD), it is not the organization ' s property but the spouse ' s share that is divided; it is most difficult to determine the value of the property owned by the husband (the wife).The calculation should be based on the following factors:
- In this case, the statutory capital of the organization is taken into account. Thus, if at the time of divorce the CC is equal to 100,000 rubles, the business is divided equally, i.e. the husband and wife receive 50,000 rubles, but this is in theory. In practice, the real price of the organization is higher than this amount. In such a statutory fund, the value of the organization ' s assets may be as high as 10 to 20 million rubles or more. This is why this method of valuation is not used because it does not reflect the true state of affairs.
- Market value: The best solution is to determine the real price of a company on the market. This task is entrusted to specialists who assess many factors, from the organization ' s assets to the level of current debts. After calculation, the value of the share is determined. The GCO ' s estimate therefore takes into account many factors, including the structure ' s return and the value of the property.
There are three ways in which a divorce can be divided by the CBO:
- Natural division of the share available: This option is not always possible for several reasons, because of the prohibition (written in the constituent papers) of adding founders without the consent of other participants, as well as the exclusion of the share, and it may be difficult for such a division to have a personal relationship between the divorcees, and it is unlikely that the consecrated spouses will be able to jointly manage the business.
- The husband (wife) is held by the LA after paying compensation to the second party; the amount of the company ' s share is determined after calculating the market value (as mentioned above).
- The spouses sell the business and share the money in proportion to the share; this is possible only with the consent of both parties.
What's better to talk about before the divorce?
The contract usually specifies the beneficiary of a part or all of the property (including business): if the owner is a spouse who already possesses a certain property, it is a plus for the company; for example, if the husband has a share in the organization, there is no change after the divorce process has been completed.
Alternatively, the document specifies the transfer of the business to the husband (wife) after payment of the necessary amount by the second spouse (compensation), but does not specify the exact amount, since the GLD price may change at different times.
How can you divide a business without a marriage contract?
The agreement specifies which part of the property is left to the husband (husband) after divorce; a contract is drawn up in the absence of serious problems between the spouses; sometimes an agreement is signed during the marriage, when the couple is not yet intending to divorce; this is a very wise decision, and often it is possible to keep the family together.
Alternative
In such a situation, the husband (wife) has no company, so there is nothing to share. This option is acceptable, but it carries risks. It is important to be sure of the person to whom the business is transferred. If the temporary holder of the right of ownership does not want to give the company back, it will be difficult to return the latter.
Outcome
The division of business in divorce is a labour-intensive process that often results in the termination of a company ' s operations. In order to eliminate such consequences, it is important to pre-describe the fate of the CBOs and lay down the basic conditions in the marriage contract.
Division of business in divorce: case law
The decisive factors will be the form of organizational and legal activity and the degree of attitude of both spouses to this business. When a marriage is dissolved, the business is divided into only two scenarios: peaceful and judicial.
The Peace Part of Business: How Can You Agree?
Even before the marriage is concluded, it is possible to agree in advance on a marriage contract that assigns all aspects of the division of joint property, such as:
- Whether the incomes of one or both spouses would be considered as common.
- If there were children, who they would stay with and what amount of maintenance the second spouse would have to pay.
- What part of the business does the spouse (or does he receive at all) who is not the owner of the business?
- The fineness of the conduct of this type of activity.
I wonder if a marriage contract can be concluded not only before the wedding, but also after it.
He must be assured by the notary of the place where the property is located or the place of business. For such a procedure, the divorced couple must be paid for the services of the notary and 1 per cent of that amount as a government official.
The agreement indicates which property was received or donated before the marriage (it is indivisible), which part of the business was accumulated before the wedding, and which part after that, which of the property of the spouses would be considered common property and what was personal.
Necessary documents
The notary should be provided with the following documents in the form of a contract:
- Originals and copies of passports;
- Documents confirming the conclusion, dissolution of the marriage (verifications, court decisions);
- Business documents (owned property certificate, contracts concluded and acquired land rights);
- Independent expert ' s report on the valuation of the property of the owner ' s firm.
It's important:You can't make an agreement before marriage, but it's arranged only during a marriage or a divorce, and on the basis of it, the spouses decide how things that they already have will be divided, and the method is good enough not to waste extra nerves, time, and money on legal expenses.
How can we share a couple's business through court, and where can we turn?
All property accumulated in a marriage (including the opening of a business) must be shared equally between the spouses in the event of divorce, but in order to share the business fairly and fairly, the parties need to provide proof that the business must remain with them.
Such evidence includes cheques, witness statements, bank accounts,Confirming that the party has invested its personal savings, powers and time to start a business.
If there is a minor child or the other party is incompetent, the court will take note of this and increase the share of the business for the spouse who is unable to work or who is left with the child.
Depending on the value of the property or the profit from the business, the claim is submitted to different authorities:
- The justice of the peace is if the value of the property is up to 50,000 rubles.
- The District Court of the plaintiff's place of residence - in the case of the sum of more than 50,000 rubles.
- District Court of the Place of Real Estate (firms, offices, offices in the building, land).
Documents
Relevant documents:
- Identification (passport, INS);
- Birth certificates for common children;
- The right to own property;
- The contract of sale will confirm the date on which the business was founded and its original value;
- A statement indicating that the original cost of the item has changed;
- Reports showing that pre-marriage business has been upgraded or re-engineered to general finance;
- Other papers showing the need to increase their share (health, children ' s needs).
The content of the claim
The statement of claim shall state:
- Name of the court.
- Information on the plaintiff and the defendant.
- Information on the date of marriage or divorce, the existence of common children and the source of the money in the family budget.
- A list of things, deposits, assets, bank accounts, securities, real property acquired prior to marriage and accumulated during family life.
- Detailed description of business and business.
- The evidence of why the business, or a large proportion of it, should remain with the plaintiff; apart from the investment of personal funds, it is possible to indicate (if these are the real reasons) that the spouse did not care at all for the needs of the family and children.
Division of business if the owner is the wife or husband
For example, if the owner is a wife and she has not paid attention to the upbringing and care of the children, has treated them badly, has spent money on her needs to the detriment of the family, the husband has the right to demand that the court decide: to leave the children with him, and most of the wife's business is to give him.
Similar principles apply to how a business is divided upon divorce if the husband is the owner.The wife may legally demand an increase in her share of the husband ' s business if he:
- does not care for the interests of the family(although the financial situation allows him to do so);
- Conducting a disorderly lifestyle;
- Beats his wife or children.(there are acts and medical reports of beatings);
- does not pay alimony or is insufficient to support children, treat them and raise them.
The share is increased if the second spouse deliberately conceals, destroys or destroys the common property, making the living conditions of the family unfit for the life and maintenance of the children.
The court may decide to divide the property by allocating it in kind (e.g. office furniture and equipment to one spouse and to leave the securities with the owner) and, if this is not possible, compensation will be paid to the claimant (it is equal to the share of the second spouse).
The application shall be in writing:
- In two copies (for the court and the defendant), if transmitted by mail.
- Three copies (for both parties and the court) if left in person at the office of the court.
When an application is filed, the court's register pays for the public service.
As business is divided into different organizational and legal forms: GLD, IP, AO
The manner in which the business is conducted depends on the nuances of the division of all business activities.
The characteristics of the division of business in different organizational and legal forms:
- Ahh.Under the law, shares purchased during marriage must be divided in half between husband and wife during divorce (at the nominal, market, exchange price).
If one of the spouses requires shares, and under the company's statutes, it is not possible to have another shareholder, then one will receive shares, and the other one will be compensated for their full value.
The important thing is that the spouse cannot sell, gift or transfer shares without the consent of the spouse.
- Uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh...The share of the statutory capital (but not the company ' s property) belongs to the husband and wife in equal parts if the SLD was married.
Where both spouses are the owners of the SLD, they may agree on joint management over the firm, buy or sell a share with monetary compensation for it, or sell a business with an equal distribution of profits.
If the founder is only one of the spouses, and he is the only member of the board of the CBOs, the court will not satisfy the requirement to split the business in half, as disputes between the former spouses may turn into a corporate scandal, which will have a negative impact on the entire company and its employees.
And if a company other than a divorced person takes their opinions into account, then when the other spouse wishes to be the owner of the company and they do not give their permission to do so, the judgement will be on their side.
- FLP (a.k.a. IP).The division of business in that case corresponds to a proportion of 50:50.
- FarmingThis type of business often means that the founders are relatives or loved ones. The law requires the conclusion of an agreement with the prescribed contributions to the firm of each of its founders. The movable or immovable property will be shared on the basis of the investment, power and time of both spouses. The rights of the other owners must not be impaired. The transfer of land, transport, equipment, construction, animals and birds to others without their consent is not possible.
Options for the division of business in divorce: case law
The legislation establishes additional options for the division of entrepreneurship:
- Transfer of business to one spouse, financial compensation (equal value of business) to another.It is reasonable to conclude that rights or shares will be left to the person who invested the most in his or her business, power, time, ideas and abilities. If the owner now has no money to compensate, he or she may buy out the share of the spouse in part or later.
- The division of one firm into several new ones.This approach is appropriate for those spouses who are both owners (on equal terms) and who, after divorce, want to continue doing business;
- The sale of the general case and the distribution of the money received.This is relevant if the entire state of the family's accumulated condition is not a business and can't be shared. Before selling, all shareholders must be collected and the company's documentation changed accordingly;
- Discontinuation of the joint caseIf none of the spouses wants to do business and sell it to anyone else, the firm can be liquidated by declaring it bankrupt; all rights to the company will be cancelled, assets (real estate, machinery, transport, equipment) divided between the spouses and other founders or auctioned.
Juridical practice in divorce cases
Conflicting couples are not a mere legal object in themselves, but divorced businessmen with their large sums, much less how do they share their property in divorce, in which case, what can each spouse expect? If the spouses have something to do with the PCO, the IP, or the ZAO, then consider the matter.
Is it possible to divide a joint business in a divorce?
If you look at the existing case law on joint business in divorce, you can draw some conclusions: for example, a couple can divide not only an apartment or a car as joint property in divorce, but also as a business. However, the options to do so depend primarily on the definition of the property itself. First, there are two options:
- This is the case in the family;
- Or just the IP.
Second of all,The section is influenced by:
- The contribution of both spouses to the development of the organization;
- Their professional skills;
- Special features prescribed in the preparation of the GLD;
- The desire of the second party to become IP;
- And a lot of other things.
Note that the division becomes impossible after the statute of limitations has expired. Within three years of the divorce being established, all property issues must be resolved, otherwise the action will not go further, the division will not be organized.
Most often, couples resort to legal professionals and go to court, the judge considers divorce last, only if the case is initiated because of the infringement of one of the spouses ' rights, it will have an impact on the progress of the proceedings.
Society with limited liability
If the organization ' s statute provides for a ban on the admission of new participants, the second party may not claim compensation onlyIf the spouses have joint shares, shares or shares, especially in fixed capital, the rules of division shall be established through the court.
The division of shares is not clearly described anywhere, the only thing that the law tells us is that shares are shared as special joint property, that the whole business is valued. Because with shares or shares, the spouse has the right to make management decisions, to make profits from the enterprise, then the liabilities and assets are valued first before starting division of the firm in divorce.
Share section
In equal shares, no one can divide the business between the former spouses. It is reasonable that a couple who have broken up will not be able to run the business adequately, much less manage the business. Only in special circumstances will the court divide the shares or shares between the two spouses. Most often 100 per cent of the shares are left behind, and the second one pays compensation.
Investment in fixed capital is considered to be the nominal value of the share, usually the total value of the share - 10,000 roublesIn other words, if the second spouse is involved in the fixed capital and has a share of 50 per cent, he will receive 5,000 rubles.
Separation of property
The division of the property of the U.S. on divorce has its own characteristics, and instead of giving the second spouse the right to own a business, it is possible to pay a share of the money.
Part of the share is calculated on net assets; the second spouse will receive a portion of the net asset in the amount of his or her share; the net assets are calculated by deducting liabilities from the total asset; and, in simple terms, the market value of the property will deduct debts and deduct interest from that amount.
Note that the owners of the grocery store do not share bread, sausage, milk and other things, but assets.If the spouse has paid compensation, he is no longer entitled to participate in and influence the business.
The business is also often sold and the amount of the business is divided into shares or evenly between the former spouses.
Juridical practice in divorce division
In order to avoid further questions, we will take into account several findings and observations from jurisprudence:
- The Court does not always define joint property equally to the shares of both spouses in the CBO, depending on the particular situation; the Court of Justice of the Russian Federation says that if the founders had discussed the size of the share in advance, they could no longer be classified as joint property; the Moscow City Court does not agree with this position.
- If the spouses argue about shares, the court refers to the FA (the SLD provisions).
- Management rights are not transferred as the object of the section.
Most often, judges draw attention to the views of other actors in a limited liability society, which also needs to be taken into account.
Can we share a business IP?
Debts are shared with IP assets.If the IP spouse spent the profits of the business on family needs, invested in the common household, the debts acquired as a result are shared between the spouses.
However, if the IP was not involved in the common family budget, there is no right to claim income or debt on the other side, and it is not governed by any general rules, but only by the Family Code, and the decision in each situation is taken individually.
Section of the ZAO in the event of a divorce
If both spouses are the owners of the WAA, they are also subject to the general rules for the division of property. The WAA limits only the number of participants in the governing body and the rules for the signing of documents.
The stock of AZA may be transferred regardless of the wish of the shareholders.
How business is divided in a divorce
When married together, the couple have many questions: who will remain with the children, how to share the property, who will continue to do the joint business in divorce, etc.
In this process, judges have to look not only at the UK of the Russian Federation, the SC of the Russian Federation and the GPC of the Russian Federation, but also at federal laws, such as FL No. 14 on OLS, FL No. 208 on AO, FZ No. 74 on CFC and other legal and regulatory acts.
Federal laws can play a primary role in this regard.
What share can a spouse claim if the owner is the husband
The property to be divided upon divorce is defined in article 34 of the Code of Criminal Procedure, which includes all property acquired during the period of the marriage; this does not apply only to objects donated and inherited by one of the spouses; however, it applies to shares in business, capital and valuable shares.
So if one or both of the spouses have a business or own a part of it together, they are allowed to divide it in divorce, no matter who the business was originally organized for.
It was possible that the spouse had nothing to do with commerce but merely raised children, and Russian legislation still established the principle of equal share in joint property.
This means that if the owner of the business is the husband, the spouse must still get half.
However, it is very difficult to divide a business in a divorce in 2023, at least because equity in this case can lead to a complete shutdown of the business, and even more difficult is the division procedure if the husband started or acquired a business before the marriage, but has lived in a family for a sufficient number of years.
How business is divided between spouses
The UK of the Russian Federation grants spouses the right to share property, both contractually and through the courts.
Treaty Section
If there is an understanding between the husband and the wife on the issue of property, the division of the common property of the spouses may be effected by means of a settlement agreement, which shall be concluded both during the period of the marriage and after the divorce, and the spouses may specify all nuances, as long as the paragraphs of the document do not conflict with Russian law.
Before marriage or during marriage, the husband and wife may also sign the marriage contract and establish in it any form of division in any proportion.
Both documents should be notarized.
Judicial separation
If no agreement can be reached on the division of the business, there is only one solution: to file a lawsuit with the court; each spouse has the right to file a lawsuit.
Most likely, when it comes to the division of business in 2023, the value of the claim is estimated at more than 50,000 roubles.
The place of residence of the defendant shall be chosen; if this is not possible, the place of residence of the enterprise to be divided.
The judge's decision will be based on the spouse's actual business, the legal form of the divided enterprise.
Options for the division of the firm in the event of divorce
It would be difficult to predict how the business would be divided between the spouses, depending on the form of ownership, the number of participants in the enterprise, and if judicial practice was analysed, the main options that the judges followed in the division could be identified.
Transfer of business rights and monetary compensation
The most common way of dividing a business is to become the property of one of the spouses and the second is paid monetary compensation, the amount of which is determined by the court, usually half of the value of the business.
Options for division of business in divorce.
The owner is the spouse who invests more time and money in the enterprise and manages its current affairs, as well as sees it as the main source of income.
One firm divided into several new firms
Business reorganisation is more often used if both spouses are engaged in business activities in a couple; otherwise, the idea may result in the collapse of the business as a whole; there are several forms of legal reorganization.
If this option is used in divorce, it is usually split into two companies.
Accession is used if one of the parties still has a private business not to be divided and the assignment to the firm is permissible provided that the spouses are in the future willing to cooperate in the business.
In any case, the reorganization requires the advice of a good lawyer throughout the process; this form of division is possible only if the entire business is owned entirely by the spouses.
Business sales and income-sharing
The sale of shares of business is another common form of division between spouses, and perhaps the simplest, but the spouses sell their assets to interested persons, and the proceeds are divided in half or in other proportions determined by the court.
Dissolution of the firm
A firm's closure is a long and multi-stage procedure, and it is used as a last resort: if the spouses choose to move away completely from business, at least within this structure.
In taking such a step, spouses need to remember that first and foremost they will have to liquidate all debts owed by the enterprise to creditors.
Features of the division of business in different organizational and legal forms
It can be very difficult to separate businesses, and different organizational and legal forms of enterprises dictate their ways of splitting.
Individual entrepreneur
If one of the spouses has IP status, the property used for the business activity is equal to common or personal property, which means that all objects purchased during the marriage for the business will be considered common, so that the court will divide them into two equal parts between the spouses.
GTA share section
The Society with Limited Liability is subordinated to the OLF as well as to the Organization ' s Charter.
In the event of a divorce, it is possible only to divide the share of the spouses ' share of the statutory capital, and the property of the DHS cannot be divided in the event of a divorce.
In order to continue to make a profit from an existing enterprise, the owner needs the permission of the remaining members of the Society; if not, only monetary compensation is payable.
The company ' s statutes must be studied before the division, and there are often severe restrictions on the admission of new members to the Limited Society, which means that even if the spouse receives a share in the statutory capital, he will not be able to enter the business as a partner.
Share-sharing in the Equity Society
When a serious equity interest is divided, the spouses will definitely need a securities specialist; the main difficulty here is not to determine the share, but to calculate the value of the shares: stock exchange, market and nominal.
Once again, statutory instruments should be studied, as AOs also impose restrictions on the admission of new members.
This means that either the shares are sold and the proceeds are shared among the spouses, or the shares are paid to one of them, and the other is compensated.
Farming
The special feature of the collective farm division is that it is divided not on the basis of the UK, but on the basis of the KFC Act (provided that both spouses are members of the collective farm), which provides for two options:
- The property ceases to operate and the land is divided between the spouses on the basis of the territory of the Russian Federation. Other property is shared in equal shares or is sold and divided into money.
- The employer continues to work, but one member loses his job and receives monetary compensation.
A firm's debt-sharing
There are two options for sharing the debts that the firm has:
- The spouse who made the loan will be deemed liable, provided that the money he received was spent on personal needs, his own property, etc.
- Debts are recognized as common and both spouses will be responsible for them in the future; this is done if the funds are spent on business development or the acquisition of common property between the spouses.
What can't be divided
The UK strictly defines the categories of property that are not recognized as joint property and therefore cannot be divided, especially those that became property of one of the spouses before marriage, unless they have made significant improvements in their lives from the general family budget.
Is it fair to share a business if only one of the spouses does it?
Also, parents do not have the right to share parts of the business owned by their minor children.
How not to share business assets
It is very difficult to prove that there is a fraudulent scheme.
But there's also a risk for someone who uses fakes, because there's always the possibility that business and profits will simply not return.
Judicial practice
An analysis of judicial practice shows that the Russian courts usually divide small businesses and less often medium-sized businesses.
When it comes to the division of large corporations, the owners try to pre-negotiate all matters in marriage contracts or resolve the matter behind closed doors, with the assistance of their lawyers and without public interference, so as not to undermine trust in the enterprise.
It is not an easy task to divide a business in divorce in 2023; judges have to focus on a large number of federal regulations and on the organizational form of the enterprise itself.
Disbursement of the share of the GLD in divorce
I have a stake in the company, and I may have to divorce my husband soon.
The share in the business, if one of the spouses is married, is considered jointly acquired property.
Article 34, paragraph 2, of Act 233-FZ
The shared property is almost everything the spouses have acquired or earned in marriage, even if the wife or husband bought it with their money, and the wife bought the house and paid for it with her money, which she earned during the marriage, which was the joint property, and the husband saved half a million from the salary and kept it in his account.
If, after the marriage, one of the spouses started a business or became a member of the CBO, and this is a joint property, even if the other spouse did not participate in it. If the divorce takes place, the business will have to be divided, but this is not so simple: the CBO's statutes may provide for divorce and the marriage contract may be signed.
Sometimes the share is not considered to be joint property
In some situations, you don't have to share your share of the company. Here are some examples.
The dole was inherited or received as a gift.Vasilia's father owned 40 percent of the company's capital, and in order to provide Vasili with a life without poverty, his father bequeathed his share to him; Vasilia's wife cannot claim half of the share after divorce; gifts and inheritance are not considered jointly acquired property.
The doll was bought with money received before the marriage.Sasha got married in January, and became a member of the community after three months, and she bought a share of the money she earned before the wedding, and if Sasha still had evidence, such as bank statements on the movement of funds, the court may decide not to give the ex-wife half of the share.
The dollar was bought with money from the sale of privatized or inherited property.Vasily decided to buy a share of the GCO, sold an apartment he inherited from his parents, and paid for it.
After 10 years of divorce, the wife demanded half of her share, and if Vasili can show the court the entire chain of operations and prove that the share is bought with money from the inherited apartment, the court can count these personal property.
And the wife won't get anything.
You can share the value of the share, you can share the share.
There are two options to divide the share of the GLD:
- give the spouse the actual or market value of the share.This is a convenient option for someone who does business because in this case the former spouse has nothing to do with the GCO. The real value is the value of the net assets of the society multiplied by the amount of the share. Net assets are calculated from the accounting records of the last reporting period. For example, the net assets of the company were 100,000 rubles per year. The wife has a 20% share, half contributes to the husband in the divorce. The husband will get 10,000 rubles. This is not serious now, but imagine what happens in multimillion-dollar companies.
- I'll give my wife half the share.In this case, the partner becomes a member of the community, and what rights he or she will have, is decided by the other founders or by the court if the parties cannot agree peacefully.
You can't sell your share without your spouse's consent.
It seems that the obvious option of not sharing a share with a partner is to sell it to a third party before the divorce, and then buy it back, but if you do it without the consent of the spouse, the court will say the deal is invalid, and you still have to share it.
We can agree to share the share peacefully.
The spouses can decide how to divide the business before the trial, for which they conclude an agreement on the division of property or a marriage contract; they have their nuances, but in short, the difference is:
- Property-sharing agreementThe agreement determines how the spouses will share the things they already have.
- Marriage agreementIt's a matter of time before the marriage, and it starts to work after the wedding, and it regulates how the spouses will handle the things and the money that will come out during the marriage, whether their income will be considered to be jointly acquired, who gets what part of the business (and whether it gets it at all) - all of it can be written down.
The court ' s share is governed not only by the law and the family code, but also by an agreement or contract.
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