General and personal business in marriage
The property of spouses is written in Chapter 7 of the Family Code. Property in marriage can be personal or shared. It's the same with business.
General business
By default, all purchases, money and business of the spouses become common. It doesn’t matter who in the couple the property is registered in, or who brought the money into the house. The law calls this a regime of joint ownership, and things and money are jointly acquired property. The business is considered joint, even when the second spouse does not participate in it and is not listed in the documents. The official husband has rights to the share of his wife’s LLC, despite the ban on doing business. And the entrepreneur’s assets also belong to his wife on maternity leave.
During a divorce, the common business is divided in half. The spouse receives 50% of the individual entrepreneur's assets or half the share of the LLC.
For example, the husband owns a taxi service. The business has computers for dispatchers, a taxi calling program and money in its accounts.
In the case of an LLC, the wife will receive a 50% share in the authorized capital. In other words, the opportunity to receive half the profit from the business. The money, computers and software will continue to belong to the LLC.
In the case of an individual entrepreneur, the wife will receive the right to 50% of the money, computers and programs.
Personal business
The business that started before marriage remains personal. It is not divided in a divorce.
However, it is important to remember the difference between an LLC and an individual entrepreneur:
- The share of the LLC will not become common if the spouse bought it before the stamp in the passport.
- The pre-marital property of an individual entrepreneur will be his personal property. But here you need to look at each asset. In the example about the taxi service, it may be that the husband had the program before the wedding, and computers were purchased afterwards using money shared with his wife. It turns out that the program is personal, and the computers are shared - only they share.
According to the law, there are cases when a business is personal, although it appeared during marriage:
The spouse received the share or asset by inheritance or as a gift . For example, the wife received half of the company after the death of her father. Or the entrepreneur was given computers for dispatchers by his mother.
The spouse bought the share or asset with money earned before marriage . The entrepreneur developed a taxi service long before his wedding. Over the last year I have been saving money to upgrade the control room. After the wedding, he bought computers - they are his personal.
An entrepreneur's asset is the result of intellectual activity, and he is the author . If in our example the husband writes a program for a taxi himself, this asset will become his personal one.
The share or asset appeared when the spouses separated, but have not yet divorced . Here, only a court can recognize property as personal. The wife moved to a rented apartment and six months later opened an LLC. Six months later she got divorced. She has a chance that her husband will not sue half of the business.
Donated meters are not divided
There were two options - equally as jointly acquired property or not to divide, but to give it to the one with whose inheritance it was purchased. Similar questions often arise before those who divide jointly acquired property. Therefore, the explanations of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation may be useful not only to the judges for whom they were given, but also to ordinary citizens.
Local courts disagreed, but the Supreme Court put an end to it. He stated that real estate that was purchased with the funds of one of the spouses cannot be divided. This story began almost 15 years ago in the Rostov region. There, two years after the wedding, the young husband received an inheritance from his grandmother. These were shares in a private house and land. The husband decided to sell the inheritance and use the proceeds to buy an apartment for his family. So all the money received was spent entirely on the purchase of housing. The new apartment was registered in the name of my wife.
A few more years passed, and the family fell apart. That’s when the question of dividing the acquired property arose. And first of all - apartments. The man went to court, demanding that the apartment be recognized not as joint marital property, but only as his personal property.
In court, the plaintiff explained that the apartment was purchased entirely with his money, which he received from the sale of his inheritance. Showed the documents. True, the ex-wife did not deny this.
The trial court carefully calculated everything. He saw that the amount that was received for the inheritance, literally a month later, in its entirety, penny for penny, went to pay for the apartment.
The Volgodonsk District Court of the Rostov Region decided that the spouses bought the apartment with the husband’s personal money, so it cannot be considered joint property of the spouses. The court granted the ex-husband's claim and left the housing to him.
The appeal was not satisfied with this decision. The court agreed that the husband bought the property at his own expense. But at the same time, the regional court said that the husband “actually contributed money to the family budget, since he bought a joint living space.” The regional court noted that the husband agreed to register the apartment in his wife’s name. And this once again confirms that there is no reason to consider property as personal property.
So the appeal overturned the decision of the district judges and made its own decision - it divided the apartment in half.
That's when the ex-husband went to the Supreme Court.
The board pointed out the mistakes of the lower authorities. According to the Supreme Court, in order to correctly determine the status of property (common or personal), you need to understand with what funds it was purchased and under what transactions. According to paragraph 1 of Art. 36 SK (“Property of each of the spouses”), what one of the partners received free of charge (including inherited) is not common. It will remain personal if the partner sells it and buys another house or apartment in return.
Property purchased during marriage with the money of one of the spouses excludes it from the regime of joint property, even if it is registered in the name of the other spouse, the Supreme Court said.
He recalled his resolution of the Plenum (dated November 5, 1998) “On the application of legislation by courts when considering cases of divorce.”
Property purchased with the personal funds of one of the spouses is not community property
It clearly states that property purchased during marriage is not community property, but with personal funds. Therefore, the Judicial Collegium for Civil Cases of the Supreme Court stated that the first instance took the correct position during the consideration. That is, the district court.
In disputes, if a spouse wants to recognize the property as personal, he must prove to the court that the funds used to buy the disputed object were not shared. You can prove it in different ways. It can be shown that the funds were earned before marriage. Or indicate receipt of an inheritance or gift. In such cases, the court must evaluate the value of the acquired property, the amount of personal funds and the time between receipt of income and acquisition of real estate. In our case, very little time has passed since the sale of one object and the purchase of another. So the Supreme Court upheld the decision of the district court, according to which the apartment was not divided.
How LLCs and individual entrepreneurs are divided during a divorce according to the law
As we have already said, each spouse receives half of the jointly acquired property. This does not mean that you have to divide every item in half.
Ideally, spouses agree on who gets what. For example, the apartment and share remain with the wife, but the husband does not pay the mortgage. The terms are written down in the agreement and certified by a notary.
The usual story is that spouses argue, so they go to court. Then the court decides who should give what.
Most often, the business is rightly left to the spouse who was involved in it. This rule is not in the law, this is how court practice develops. But sometimes the share is divided in half. Then a new participant will appear in the business, which is not always good.
- If one spouse is given a share of the LLC, the other is awarded compensation at half the cost.
In one case, the husband was awarded a nominal value of 7,000 rubles - apparently, the business was not of particular value. In another case, the wife received compensation based on the market value of the share in 4,986,000 rubles. - The same principle applies to individual entrepreneur assets.
One was given the property, the other was compensated for half. For example, a husband who was engaged in cargo transportation was left with two Kamaz trucks, a trailer and a Chevrolet Niva, and was ordered to pay his wife half of their total market value.
There are rarely situations where spouses share only a business. They usually argue about everything at once: an apartment, a car, a set of red antique chairs and a share in society. An entrepreneur can give away other property for the business, for example, a car. This is a way to save business.
Quietly transferring your business to a trusted friend is a bad idea. The LLC share is sold with the notarized consent of the spouse, which he most likely will not give. It is possible to sell IP equipment. But there will be a suspicion that the spouse has withdrawn the marital property, and the court will return everything back.
The court on division has three years from the moment when the spouses began to argue over property. This is stated in paragraph 19 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 15 dated November 5, 1998. It is a mistake to think that three years are counted from a divorce. It may turn out that the ex-spouse will sue in five years, when the business becomes successful - and it will have to be divided. Or even after the death of an entrepreneur. It happens.
Individual entrepreneur loans will also be divided in half between spouses. However, this will happen with any borrowed money, but this is a topic for a separate article.
The usual order of inheritance after the death of relatives
Upon the death of a husband, wife, sons, daughters, distant and close relatives, there are options for registering an inheritance: notarially or in court. with a notary yourself if all the documents are in order.
It's not difficult, although it does take a lot of time. Then you can contact us for help. Read more about inheritance on the site pages (right menu). In court it is difficult. And it’s difficult because you can’t submit the same request to court twice. If the claim is immediately drawn up incorrectly and the court decides to deny the inheritance, there may not be a second chance. Therefore, it is important to correctly draft a statement of claim. And in difficult cases, be sure to hire a lawyer in court.
Prenuptial agreement and separation agreement - so that the business becomes only yours
To avoid dividing property during a divorce, spouses draw up a prenuptial agreement or separation agreement.
Marriage contract
The rules of the marriage contract are prescribed in Chapter 8 of the Family Code.
Spouses enter into a prenuptial agreement if they do not want to divide property equally. They seem to say: “Everything we buy and earn does not become common.”
The conditions for the contract can be chosen differently. For example, that the property will be the personal property of the spouse in whose name it is registered. This is exactly what you can do with the share of an LLC and the assets of an entrepreneur.
You can determine shares in property - establish shared ownership. And also immediately agree on who will get what in the divorce. Even if the spouses go to court, the business will be divided according to the contract, and not according to the law.
You can agree on a business that you already have or that you are planning to open. It is legal.
In principle, a prenuptial agreement resolves any issues regarding property and money. You can't just mix in human relationships. For example, write that the spouse will lose the business for treason.
The terms of the marriage contract must be fair. If it turns out that one spouse gets everything in life and the other gets nothing, the court will cancel the contract.
After ten years of family life, the couple entered into a marriage contract. They had a house of 70 square meters on a large plot, a two-room apartment, a boat and a Toyota car. Only ¼ share in the apartment is registered to the wife. The rest was registered in the name of the husband.
According to the contract, the property belonged to the spouse in whose name it was registered. That is, almost everything acquired went to the husband.
The husband died and the wife was left with three children. Then she challenged the marriage contract. The court considered that such a imbalance in conditions was unfair. The contract was canceled and the wife received half of the property.
A prenuptial agreement is concluded before the wedding or at any time after. At least the day before the divorce.
The contract is certified by a notary. The service costs 500 ₽ at the Tax Code rate. But in reality, they will charge spouses from 5,000 rubles. This is a fee for text and legal expertise.
Once the contract is signed, you cannot refuse simply because enlightenment has arrived. Just negotiate with your spouse about termination and go to the notary again.
Even when an entrepreneur has problems and debts, he notifies creditors about the prenuptial agreement. Otherwise, in case of bankruptcy it will be canceled.
Agreement on the division of common property
The agreement divides specific property that appeared during the marriage. What is not shared remains common for the spouses.
In this way, you can divide the share of the LLC and the assets of the entrepreneur. This can be done in marriage, when the relationship is normal. Or you can during a divorce, so as not to get involved in an expensive legal dispute.
The division agreement is drawn up by a notary. They pay 0.5% of the value of the property. Therefore, an assessment of the market value of a share or assets is ordered.
