Many clients will ask about Shielding their business ownership interests in a divorce or when property division is completed through a divorce process. A business owned by the parties during the marriage generally is marital property subject to equitable division/distribution by the court. If you have a business, the court may award your spouse a share of the business, either through business ownership/stock in the business or through valuing the business and requiring the business owner to pay the other spouse a share of the equity in the business. In other situations, the court will require the business-owning spouse to provide a percentage or share of the profits for some period of time. At Pingel Family Law, we are knowledgeable about helping clients through the dissolution of marriage process in Missouri or the divorce process in Kansas to have a fair outcome related to their business(es) owned during the marriage.
How Can We Help You Prepare for a Divorce as a Business Owner?
If you anticipate a divorce could be coming or may be in your future, the best thing you can do is make immediate plans to begin divorce-proofing your business.
What are some ways we, here at Pingel Family Law, can help you plan for a divorce? We have helped many clients strategize the best possible outcome and timing of their need or anticipated divorce based on the planning of the business operations. What are some potential ways that we can assist you even in the pre-divorce planning stage of your divorce situation?
- Operating Agreements: When a business is a corporation, partnership or other entity, an operation agreement can place or control specific terms of both, ownership and control in the event an owner gets a divorce. An operating agreement can also prevent a business owned by one spouse from being transferred, in part, or fully, to another spouse as part of the divorce process.
- Proactive Planning in Limiting Your Spouse’s Involvement: Even if you own a business prior to the marriage, if you allow your spouse to have a substantial role in the business, you may convert some portion, or even all of the business, to a marital asset. Thus, in some situations, being intentional about limiting the spouse’s role in the business is crucial to an appropriate outcome for a business owner. When one party is clearly the owner and has put all of the effort and energy into the business, it is less likely to be a complicated division as it is more clear cut as to who the owner of the business is.
- Reasonable Salary Arrangements: If you are a business owner, ensuring that you pay yourself a full, reasonable and market-competitive salary during the marriage is a way of showing that profits from the business have been enjoyed by the spouses during the marriage and to counter the argument that the profits were re-invested in the business.
- Prenuptial agreements and postnuptial agreements: this is perhaps one of the best options in protecting your business during your marriage. An agreement can be negotiated that designates your business as separate property and therefore, not subject to equal or equitable division. Generally, in order to accomplish this, it needs to be contemplated prior to the marriage (a prenuptial agreement) however, agreements negotiated after the marriage (also known as postnuptial or antenuptial agreements) can also be effective. There are many considerations that need to be addressed in negotiating and finalizing this type of agreement. It is best to get a knowledgeable and experienced attorney in place to assist with the preparation and finalization/negotiation of such an agreement. Generally, to make sure that the court will recognize, approve and hold the agreement valid, both parties need to be represented by separate attorneys and make a full and fair disclosure of all of their assets and their complete financial picture.
If you are a business owner and are concerned about protecting your business assets, the best time to consult with our office is now. Even if you do not believe a divorce is necessary or going to be required in the near future, you are better off making plans to proactively protect your business. Schedule a consultation to allow us to advise you on your potential options, the benefits and risks of those options and allow us to work on your team to execute the best possible strategies to protect your business.
If you require a divorce or dissolution of marriage and you have not engaged in pre-divorce planning, there are still many efforts that can be made to protect and shield your business interests as much as possible. The attorneys at Pingel Family Law, LLC, can analyze your business and situation to try to hep you minimize your spouse’s interest in the business and the associated assets of the business. It may be best to value the business and work toward a buy-out of your spouse’s share of the business equity. If your marital estate has sufficient assets, we may be able to successfully set aside to your spouse sufficient assets to allow you to retain the entirety of your business and its assets. Finally, if you and your spouse disagree as to the value of the business and therefore, the buyout that is necessary, we have successfully worked with many business appraisers to determine a fair and appropriate valuation for businesses.
Put our knowledge and experience to work for you in valuing and dividing your business interests through the divorce process. Call us at (816) 208-8130 to schedule your pre-divorce planning consultation or a divorce consultation if you anticipate that a divorce is eminent or even underway.