Divorce is rarely complete without a division of jointly acquired property, including a joint business in the form of a unitary enterprise.
A unitary enterprise is a commercial organization not endowed with the right of ownership to property assigned to it by the owner. The property of a unitary enterprise is indivisible and cannot be distributed among deposits (shares, shares), including among employees of the enterprise. The property of a private unitary enterprise is privately owned by an individual (joint property of spouses) or a legal entity and belongs to such an enterprise under the right of economic management.
The property acquired by the spouses during the marriage is their common joint property, unless otherwise provided by the marriage contract. However, the property of a private unitary enterprise, which is in the joint joint property of the spouses, also cannot be divided into shares.
In this connection, difficulties arise in the process of dividing property in case of divorce. However, there are several possible solutions to this issue.
Methods of dividing a unitary enterprise:
a unitary enterprise may be reorganized by division (separation) or transformation into a business partnership or company, as well as into a production cooperative in the manner established by law and by agreement of the parties;
the enterprise as a whole as a property complex can be sold to a person who is not a participant in the shared ownership of the property of a unitary enterprise;
the property of a unitary enterprise becomes the property of one legal entity or individual with payment to other persons of compensation according to their share in the common property, determined according to the rules established for the property in respect of which shared ownership is allowed;
a unitary enterprise is subject to liquidation in the manner prescribed by law if the reorganization or transfer of property into the ownership of one person is contrary to the law or impossible for other reasons.
The disposition of property in joint ownership is carried out by agreement of all participants, which is assumed regardless of which of the participants made a deal to dispose of the property.
In the first option, in order to transform a unitary enterprise into a business company, it is necessary to transfer ownership of the property of a unitary enterprise to a business company as a result of reorganization. The reorganization of a unitary enterprise into a business company allows you to allocate the shares of each spouse.
For this, a deed of transfer and a separation balance sheet are drawn up, which should contain provisions on the legal succession of all obligations of the reorganized legal entity with respect to all its creditors and debtors, including obligations disputed by the parties.
If the property is the exclusive property of one of the spouses, who is the founder of the unitary enterprise, then he signs and approves the deed of transfer.
If the property of a unitary enterprise is actually owned by the spouses on the basis of joint ownership, then the consent of both spouses is required to transfer the property to a new business company.
The second option involves the sale of a unitary enterprise as a property complex to a third party. In this case, the spouses have the opportunity to share the funds received from the sale.
The third option provides that the unitary enterprise becomes the property of one of the spouses with the payment of the second compensation in the amount of his share, as if this could be distinguished. Thus, in the absence of a prenuptial agreement, the joint property of the spouses is recognized in equal shares. The court has the right to change the size of the shares, taking into account the interests of minors and needing help of disabled adult children or the interests of one of the spouses noteworthy. The share of one of the spouses, in particular, may be increased if the other spouse avoided working or spent common property to the detriment of the interests of the family.
