One of the most, and sometimes the most painful issue in divorce is the division of property jointly acquired by spouses. And if a marriage contract was drawn up by the spouses during the marriage, then this greatly simplifies the matter. It is important to note that a marriage contract should not contradict the law and should not put one of the spouses in a very unfavorable position.
Jointly acquired property includes all property acquired by spouses during marriage (both movable and immovable), income from commercial and labor activities, bank deposits, securities, jewelry, luxury goods, as well as business.
In accordance with the current legislation, the shares of the spouses in joint property are recognized as equal in the absence of a marriage contract, which establishes other shares.
Accordingly, shares in a business are also recognized as equal, regardless of which of the spouses was directly involved in it.
It is possible to divide joint property both in a judicial and voluntary manner. This also applies to the division of business.
Out-of-court procedure for dividing a business in case of divorce
The voluntary order includes the conclusion of a marriage contract, which provides for the option of dividing the business in the event of a divorce. A marriage contract can be drawn up at the time of marriage, and after its conclusion.
And in the absence of an agreement between the spouses on the division of the business, this issue can be resolved by the court.
Business received by one of the spouses as a gift or by inheritance, as well as created before marriage cannot be divided.
Options for the division of business between spouses in case of divorce
There are many different variations on how a business can be divided between spouses. The degree of participation in the business of each spouse, the interest in maintaining the business is taken into account, the presence of minor children and with whom of the parents they will live after divorce, as well as the needs of one of the spouses that deserve attention are taken into account.
The business can be sold, the funds received can be divided in half between the spouses. You can liquidate a legal entity. While maintaining an even relationship between spouses, you can become co-owners of a business. Or transfer the business to one of the spouses, who will pay the other appropriate monetary compensation.
The section of the business will differ depending on the form of the legal entity: individual entrepreneur, LLC, CJSC, OJSC, UE, peasant farm.
When one of the spouses is an individual entrepreneur, then there are no questions about the division of the individual entrepreneur’s property, since the property of an individual entrepreneur is not divided with the property of an individual registered as an individual entrepreneur, and is joint with the other spouse.
As for the CJSC and JSC, everything is also quite simple here – the shares acquired during the marriage are considered common property and are divided equally between the spouses.
With a unitary enterprise, the situation is somewhat different, despite the fact that the property of the unitary enterprise is jointly owned by the spouses. The property of a unitary enterprise is indivisible and is under the economic jurisdiction of the enterprise.
In this case, the following partition methods are possible:
– the property of a unitary enterprise becomes the property of one spouse, who pays the second spouse compensation corresponding to the share of this spouse in the joint property (the share is determined as if the property could be divided);
– reorganization of a unitary enterprise into a different organizational and legal form, where each of the spouses will have their own share in the authorized capital (LLC, business partnership, production cooperative);
– registration of a unitary enterprise as a property complex with subsequent sale to a third party and division of the funds received between the spouses;
If for some reason a unitary enterprise cannot be reorganized or transferred to one of the spouses, then the enterprise is subject to liquidation.
If an LLC, ALC or a business partnership was formed during the period when the spouses were married and one of them owns a share in the authorized capital of the company, then such a share is the common property of the spouses and is subject to division between them.
The presence of partners in the LLC complicates the division of the share, since it becomes necessary to take into account their interests.
So, if, during the division of property, the court recognizes the right of the spouse (whose other spouse is the owner of the share in the LLC) to the part of the share in the authorized capital due to him, then with the consent of the other participants of this company or partnership, the spouse of the participant can:
– become a full member of a society or partnership;
– receive payment of the value of the part of the share in the authorized capital due to him;
– demand the issuance of property in kind for a value equal to its share.
Limitation period for division of business
The limitation period for the division of property of spouses whose marriage has been dissolved is 3 years and begins to be calculated from the day when one of the spouses learned that his rights to common property were violated. That is, when one of them begins to prevent the other spouse from exercising his rights in relation to this property.
Our lawyers have extensive experience in conducting divorce cases in Belarus, as well as in matters of division of property and business upon divorce. Our lawyers will advise you on all issues related to the division of business upon divorce, as well as provide you with other necessary legal assistance.
If you have questions related to divorce and division of business, and you need help or advice from a lawyer, please contact our lawyers by e-mail: info@familylawyer.by or by phone: +375293664477.
