Anna Konyaeva It’s not a family issue On how to painlessly divide a job during a divorce 03/11/2023, 08:35

The answer to this question depends on the organizational and legal form of the business, the intention (or lack of) the spouses to agree peacefully, the number of business participants.

According to Article 34 of the Family Code of the Russian Federation, property acquired by spouses during marriage is their joint property. This rule also applies to income from entrepreneurial activities of each of the spouses. Real estate, securities, stocks, deposits, capital shares, etc. acquired at the expense of common income. It is also considered as the joint property of the spouses. Regardless of whether the second spouse is a member of the company or not and in which position he is in the management, it is shared equally between the spouses.

However, there are exceptions to this rule.

It is impossible to divide a business recognized as the personal property of a spouse on the basis of Article 36 of the RF IC. For example, if the business is inherited or donated to the spouse; if the business was purchased with the spouse’s personal money before the marriage; in the case of acquiring a business with the income from the sale of acquired or privatized real estates.

Spouses can set special rules for the division of labor by agreement.

For example, it is written in a marriage contract, which may contain provisions regarding the spouses’ separate property regime. For example, to reinforce the provisions that shares acquired in a marriage in an LLC remain the property of one of the spouses after the divorce. According to art. 41 of the Family Code of the Russian Federation, a marriage contract can be concluded at any time before or during marriage.

In addition, special provisions may be included in the announcement regarding the joint property sharing between spouses.

Let’s take a look at another way to protect your business. In the company charter, “protective language” can be fixed to exclude the possibility of ex-spouses going into business. So, paragraph 10 of Art. 21 of the Federal Law “On Limited Liability Companies” makes it possible to fix in the charter the need to obtain the consent of LLC participants in order to transfer a share in the authorized capital to a third party.

In practice, the following division of labor options are frequently used.

First: the business remains with one spouse, and the second receives compensation. If one of them does not intend to take a real part in the case, this method of division will be most appropriate.

Second: business restructuring. This method is used when both spouses plan to stay at work. As a rule, during a divorce, a reorganization is carried out in the form of a split into two companies, less often in the form of a split. In the first case, the company ceases to exist and its rights and obligations are transferred to new legal entities. During restructuring by division, the business continues to operate, but some of the rights and obligations of the reorganized company are transferred to the company formed on the basis of it.

Third: sale of the business and cash sharing. In this case, the spouses sell the goods to the related parties and the income is divided among themselves.
In terms of maintaining a business, splitting an LLC is the most painless. In such a case, if the other participants cannot come to an agreement, the former spouse will not be able to become a member of the company, but will be able to receive compensation.

If the spouses do not have any receivables against each other in the joint stock company, the securities portfolio is divided into equal shares. But in practice, if there is an agreement, the entire portfolio remains with one of the spouses, and monetary compensation is paid to the second.

The situation of individual entrepreneurs as a whole is much more complicated, since such a business cannot be divided in kind. In other words, the business of one of the spouses cannot be divided within itself, but it is possible to share all the business income obtained during the marriage.

We recommend that spouses provide a special regime for the division of labor in a marriage contract or agreement on the division of common property. This method will take into account the interests of each of the parties and predetermine the fate of the business on transparent terms for each of the spouses. Otherwise, you should seek legal advice.

The author expresses his personal opinion, which may not coincide with the editors’ position.