If you have your own business or jointly with your spouse, you may be worried about what is going to happen to the business during the divorce. First, the business must be established either as marital or separate property. The business is marital property if marital funds were used to start the business or if the value of the business appreciated during the marriage. The business is considered separate property if pre-marital funds were used to start the business and the business was started before the marriage. In most cases, the business is marital property and subject to equitable division because it is normal for the business to appreciate during the marriage. However, the appreciation that was a direct result of “market forces” is not subject to division. Sullivan v. Sullivan, 295 Ga. 24 After the valuation of the business is completed, the non-owning spouse’s stake in the business will need to be offset by other marital assets.
Small Businesses in Divorce
If your spouse owns a small business it may not be worth pursuing the equitable division of the business in the divorce. In the case of Zekser v. Zekser, the court found the husband’s business had “no intrinsic value” and awarded the husband his consulting business. This was due to the husband being the only employee and the business had one client. If your spouse’s small business is similar to the Zesker case it may not be in your best interest to make a marital claim on the business. This is due to the low value of the small business and that it may cost more to fight for your value in the business than it is worth. However, your spouse’s small business should be brought to your attorney’s attention for them to determine whether or not you should make a marital claim on your spouse’s business.
Joint Businesses in Divorce
In businesses where the spouse jointly owned and operated the business, it is normal for one of them to retain ownership or for the business to be sold. It is rare that the spouses will agree to run the business together after the divorce is finalized. After the spouse’s ownership or business value is determined it can be off-set by other marital assets. In some cases, the spouse giving up their ownership in the business can receive business alimony. Miller v. Miller, 288 Ga. 274 Business alimony is a property division award and makes up for the owning spouse’s shares they received from the divorce. Determining equitable division of a business in a divorce is a complex issue and you will need an experienced Divorce Attorney on your side. Give us a call toll-free at 866-527-2630 to set up a consultation with one of our experienced Marietta Divorce Attorneys.