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Divorce as a business owner: an overview

On Behalf of | Feb 26, 2021 | Divorce |

Divorce is a complex and trying process. When it comes time to divide marital property, many couples find that they benefit from legal counsel to make that process easier; but a divorce can be especially tricky (and sometimes difficult or contentious) if one or both spouses own a business.

  • If a spouse (or both spouses) owns a business during a divorce, it will generally require some additional work during the divorce

Professionals and business owners face a unique challenge during a divorce: preventing their spouse from taking control of a business started before or during marriage. Business ownership is a complicated sphere. You need to address it methodically and carefully during a divorce.

  • If your spouse wants partial or complete control of your business, you’ll benefit from working with a business owner divorce attorney 

Common Concerns for Business Owners Going Through Divorce In Naperville

Business owners in divorce may experience a range of concerns. Every scenario and divorce is totally unique, so the best way to ensure your questions are answered is to consult with a lawyer about your case. Some of the most common questions and concerns include:

  • Determining whether the business qualifies as marital property

  • Obtaining an accurate, independent valuation of the business

  • Determining fair division of property

Does My Business Qualify as Marital or Non-Marital Property In Joliet?

Under Illinois divorce law 750 ILCS 5/503, there are four circumstances when your business will be legally considered non-marital property. This means that your spouse cannot claim any share of the business. A business qualifies as non-marital property if:

  1. You owned all or part of the business before marriage

  2. You acquired or created the business in marriage by using only a gift or inheritance

  3. You acquired or created the business in marriage using assets that were your personal property before marriage (or using assets from a gift or inheritance)

  4. You have a pre- or postnuptial agreement that defines the business as your sole and separate property

Sometimes, though, businesses do qualify as marital property. This occurs when:

  1. You created the business in marriage (even if it’s only incorporated in your name)

  2. You invested savings accumulated during marriage in the business (even if the savings were solely yours)

  3. You and your spouse both invested non-marital property in the business

  4. You owned the business prior to marriage, but transferred it into co-ownership

  5. You took out a home equity loan on your marital home to fund the business

Determining whether a business qualifies as marital or non-marital property can be very tricky. There are lots of steps involved in the process. It’s important to work with a legal professional who can give you accurate advice and answers while you divorce with a business. 

Protecting Your Business In Case of A Divorce

Here’s some good news: there are a handful of steps business owners can take to secure their assets before or during divorce. For example, you can:

  • Form an LLC, trust, or corporation: To separate your business from yourself as an individual

  • Sign a prenuptial or postnuptial agreement: Prenuptial agreements are signed prior to a wedding; they detail what happens to assets, property, and income in the event of a divorce. You can also get a postnuptial agreement (which serves the same purposes) after marriage

  • Pay yourself a salary: When you pay yourself a competitive salary instead of just reinvesting in your business, it helps prevent confusion; it’s one way to show that finances between the company and your household (shared with your spouse) are separate

  • Hire a qualified divorce lawyer: We always recommend finding a seasoned divorce lawyer who can help you with your case