Your business is likely one of the most valuable assets you own –
the product of countless hours of work and a huge amount of resources.
You’ve nurtured it and grown it into what it is today, so it belongs
to no one but you and your partners… right? Unfortunately, many
business owners do not realize that in the event of a divorce, they could
lose up to 50 percent of the value of their business to a former spouse,
even if he or she didn’t have any direct influence over the business.
To avoid having an ex-spouse become an unwanted business partner, it is
important to address ways to protect your business long before divorce
becomes a consideration. Here are some of the ways you can safeguard your
interests in the event of a divorce:
Sign a prenuptial agreement. A well-written
prenuptial agreement can opt out of New York State’s equitable distribution laws which
would give your spouse a share of your business’s value at divorce.
The agreement explicitly defines what will be considered separate property,
what property will be considered marital, and how it is to be divided
if necessary. Keep in mind the following about prenuptial or postnuptial
- Both you and your spouse should be represented by an attorney
- The agreement must be created without coercion
- The agreement must disclose all assets
- The agreement must be in writing
- The agreement cannot be unconscionable
- Both parties must execute the agreement with a proper acknowledgement
Create a postnuptial agreement. If you are already married, a
postnuptial agreement is another option that can achieve the same goals as a prenuptial agreement.
Pay yourself a fair salary. If you reinvest most of your earnings back into your business, your spouse
may claim that they are entitled to more money or a larger share of your
business at divorce because of all that could have, but wasn’t,
put into the household.
Consider using a Shareholder, Partnership, LLC, or Buy/Sell agreement to
“lock out” a spouse, if necessary. These types of agreements protect the interests of the other owners of
a business if one of the owners gets divorced. Any of these agreements
might choose to have unmarried partners provide a prenup before they get
married with a waiver of their future spouse to any future interest in
the business. It could also prohibit the transfer of shares of the business
without the approval of the other shareholders or partners, and further
grant the right of the shareholders or partners to purchase the shares
of divorcing parties to maintain their control of the business.
If you are soon to be married and are a business owner, it is in your best
interests to contact Lois M. Brenner, Esq. as soon as possible to talk
about the many benefits of protecting your business with a prenuptial
Contact our office today to get started.