I have a business and I am going through a divorce: what can my spouse ask for?
You are getting divorced but you founded your company during your life together ? Can your spouse claim the status of partner and be attributed the securities of the company ?
Protect your company during your divorce!
You bought or created a company during your life together and your spouse can claim the quality of partner
If you have made a contribution to a company or purchased shares through joint assets, you are the only partner of this company, however your spouse can claim the status of partner. However, your spouse can claim the status of partner. Indeed, your spouse has the right to claim the status of partner for half of the shares subscribed. Be careful if you have used your own property to create your company, your spouse will not be able to claim the quality of partner.
What are joint assets?
Your professional income (salaries).
Your income from your own property (rent from a building you own).
Property acquired for valuable consideration during your life together (except for acquisitions made with money of your own with the option of reinvestment).
Any property created during the marriage is common property (the business).
Thus, if you have created your company during your life together, by means of common property, your spouse can claim the status of partner for half of the shares.
What rights does your spouse have? Make a distinction between security and finance.
If your spouse can claim to be a partner, in reality they will not have the shares but only the value of these shares at the time of the division. There are two things to distinguish:
- “The security: The security means the ownership of the shares, i.e. the right to be a partner in the partnership and therefore to participate in the decision of the partnership. Your spouse will not have “the security” by claiming the quality of partner. Thus, they will have no decision-making power in your partnership.
- “Finance”: This is the value of the security. If your spouse does not have the security, they will be entitled to the finance, i.e. they have a right to the value of the shares but not to the shares themselves. You will have to reimburse them for half of the value of the shares.
How can your spouse claim the status of partner before the divorce?
To exercise their right to claim, your spouse must notify the partnership of their intention to become a partner. If your spouse claims to be a partner at the time of the contribution or acquisition of the shares, half of the shares are allocated to them without being subject to approval. If your spouse exercises their right to claim the status of partner after the contribution or purchase, they will be subject to the approval of the partners of the company, and you will not be able to participate in the vote.
If the articles of association do not contain an approval clause, your spouse will become a partner as soon as the company has received notification of their claim.
Can your spouse claim to be a partner at the time of the divorce?
Your spouse can exercise their right to claim the status of partner until the dissolution of the community. In case of divorce, the claim is possible even during the proceedings and until the divorce judgment has become final.
Thus, the quality of partner can be validly claimed by your spouse after the date of the homologation of the agreement settling the consequences of your divorce for divorces by mutual consent or after the date of the order of non-conciliation for other cases of divorce.
Concretely, at the time of the divorce, you will keep the ownership of the shares, and you can continue to exercise your activity through your company without your spouse being able to block the continuity of the company or share the powers with him. However, at the liquidation stage, your spouse will have to receive a sum corresponding to half the value of the shares.
How to avoid such a situation?
At the time of the subscription or purchase of the shares you can ask your spouse to renounce their status as a partner in writing. We advise you to proceed with the registration of this writing, or even to do it by deed countersigned by a lawyer or notary. This will ensure that your spouse does not subsequently claim to be a partner.
You are getting divorced but you created your company during your marriage and your spouse claims to be a partner? Your spouse has a partnership and you want to get a share of the value of that partnership? Contact an AGN lawyer in your area, who can advise you on your rights to a company at the time of divorce.