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Navigating Late-Life Divorce: Insights for Business-Owning Couples

By Brian Joslyn October 04, 2023 Family

In the realm of divorce, where most states follow the principle of equitable distribution of property, older individuals facing the complexities of gray divorce often find themselves grappling with fear and confusion. This uncertainty primarily stems from the intricate nature of their shared business ventures.

As couples who have jointly nurtured and grown their businesses over the years contemplate separation, the prospect of dividing these assets can be daunting. In such cases, it becomes essential to navigate not only the emotional intricacies of divorce but also the legal intricacies surrounding the equitable distribution of their business interests.

Couples can invest decades of dedication and hard work into building a business they can take pride in. Consequently, when they reach the difficult decision to divorce later in life, they want to ensure that their life’s work doesn’t go to waste. Here’s what you need to know about navigating the intricate process of dividing a business during a gray divorce.

Is the Business Separate or Marital Property?

In most states, the process of asset division in the context of divorce primarily revolves around the classification of property as either marital or separate, with the latter typically excluded from the equitable distribution process.

An initial and pivotal step in this process is to ascertain whether a particular business qualifies as marital property and, if so, to delineate the proportion of it that falls under this classification.

It’s important to underscore that the regulations governing marital property can diverge significantly from one state to another. Consequently, it becomes imperative to engage the services of a qualified legal professional who can provide precise guidance tailored to the specific legal framework governing your jurisdiction.

Broadly speaking, marital property encompasses assets acquired during the duration of the marriage. This includes instances where a business was initiated or shares in a company were acquired after the marriage took place, which typically renders them eligible for classification as marital property.

Even in cases where a business was established prior to the marriage, certain factors can lead to a portion of its value being categorized as marital property.

Consider, for example, a scenario in which a small manufacturing company was founded in 2000, pre-dating a marriage that occurred in 2002. Over nearly two decades of marital union, the business’s value has appreciated significantly. In such instances, this increase in value can be deemed marital property subject to division.

Nevertheless, exceptions exist within this framework. If the business was inherited, whether before or after the marriage, it may be treated as separate property, irrespective of when the inheritance occurred. A similar principle applies if business assets were received as a gift.

How to Determine Separate and Marital Assets

The determination of whether a business falls under the classification of marital or separate property can vary among states, but a common framework is applied in most cases. Typically, a business is regarded as separate property if one spouse initiated or acquired it before entering into the marriage.

Conversely, if the business was established or invested in after the couple’s marriage, it generally qualifies as marital property. However, the neat division between separate and marital property can become blurred in certain scenarios.

For instance, a business may possess a dual classification when one spouse initiated or acquired it before marriage but maintained an interest in the business after the marriage, with the other spouse contributing to its operation or using joint funds for investment.

In cases where a business is either solely classified as marital property or a combination of marital and separate assets, the majority of it is typically subject to division during divorce proceedings. But the question remains: how does this division occur?

Separate property is fundamentally distinct from marital property and is exclusively owned by one spouse. It encompasses various categories, such as:

  • Property acquired through inheritance,
  • Assets obtained prior to the marriage,
  • Passive income and appreciation from separate property during the marriage,
  • Property acquired post-legal separation,
  • Assets excluded by a valid prenuptial agreement,
  • Compensation for personal injury (excluding loss of earnings during marriage and expenses paid from marital assets),
  • Gifts made after the marriage’s commencement, which are supported by clear and convincing evidence demonstrating their sole ownership by one spouse.

Importantly, the separate property maintains its distinct status even if it becomes intertwined with other property types, such as marital property, unless it is no longer traceable to its original source.

What Is a Fair Division of a Business in a Gray Divorce?

In the context of a gray divorce where a business is considered marital property, the fair division of this asset is a critical aspect of the proceedings. This division is deemed necessary because both spouses are typically recognized as having contributed to the business’s growth and operation during their marriage, entitling them to a share of its value.

To initiate the process of equitable distribution, it is essential to determine the percentage of the business that qualifies as marital property, as this is the portion that can be subject to division. Often, the assistance of a financial expert is enlisted to conduct a thorough analysis of the business and delineate the marital portion accurately.

Once the marital share of the business is identified, the next step involves determining its overall value, which can be assessed using various valuation methods. These methods include the asset approach, which calculates the business’s worth by estimating the remaining value after selling assets and settling liabilities; the market approach, which assesses the business’s value by comparing it to recent sales of similar companies; and the income approach, which evaluates the business’s worth based on its capacity to generate profits.

It’s important to acknowledge that the value of businesses can fluctuate significantly, and their division in a divorce is contingent upon the unique circumstances of each case. Consequently, the approach to handling and dividing a business during a gray divorce is highly situational, with the aim of achieving an equitable outcome for both spouses involved.

Ways to Divide a Business During a Gray Divorce

It’s a common misconception among individuals navigating a late-life divorce that their only recourse when it comes to the shared business is to sell it and divide the proceeds with their former spouse. While selling the business is one option, it’s far from the only avenue available. In fact, there are several alternative approaches that can be explored to address the complexities of dividing a business during a gray divorce.

The key lies in open communication, negotiation, and, often, the guidance of legal and financial professionals to help couples make informed decisions that align with their individual and collective goals as they embark on this new chapter in their lives.

Dividing the Business Up

In the context of a gray divorce, one option that business owners should consider is dividing the business if both spouses actively participate in its operations, whether as partners or in distinct roles within the company (such as one being the owner of a medical practice and the other serving as a bookkeeper).

While this approach may seem practical on the surface, it does come with its unique set of challenges. Dividing the business would require careful negotiation and a clear division of responsibilities, and both spouses would likely need to continue working together post-divorce. This scenario can potentially introduce added complexities and interpersonal challenges, as the dynamics of running a business together after a divorce may create an awkward environment.

Therefore, while dividing the business is an option, it’s essential for couples to carefully weigh the potential advantages and disadvantages before pursuing this path during a gray divorce.

Buy Out Your Ex-Spouse

When there are limited or no other marital assets to consider, one potential solution for business owners going through a gray divorce is to buy out their spouse’s share of the business. While not always the most ideal choice, it may be preferable to maintain a joint business partnership with an ex-spouse.

However, this route often entails securing a loan to cover the buyout, which can add financial complexity to an already challenging situation. Despite the potential need for a loan, many individuals opt for this path to gain full control of their business and avoid ongoing co-ownership with an ex-spouse, aiming for a clean break and a fresh start in their post-divorce life.

Trade an Asset for the Business

Rather than parting with a stake in the business, it’s possible to propose an equitable exchange with a different asset of comparable value. To illustrate, if the business’s estimated worth stands at $400,000, entailing a $200,000 share for your spouse, you can explore the option of satisfying this obligation through alternative means, such as investments, cash, or another asset of equivalent value.

This approach might entail selling other assets to accumulate the required sum, but it often presents a more favorable solution compared to relinquishing half of the business itself.

Sell the Business and Split the Proceeds

While selling your business is not the preferred route, it does remain a viable option for business owners facing the challenges of a late-life divorce. If your business is experiencing financial difficulties, with dwindling clientele and declining performance, selling it may indeed be the most practical choice. In such cases, both spouses can divide the proceeds and potentially use the funds to embark on new endeavors.

However, if your business is on an upward trajectory and showing signs of growth, it’s advisable to explore alternative solutions to avoid a sale whenever possible, as this can help preserve the value you’ve worked hard to build over the years.

Let’s Have a Conversation:

What do you find the hardest when going through divorce in your later years? Is the emotional or the financial cost higher? Have you had to split a business because of divorce?

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The Author

Brian Joslyn is a family law and divorce attorney practicing in the state of Ohio. Brian handles cases involving divorce, separation, spousal support, child support and more. Brian has devoted his life to principles of fairness and justice in the treatment of his clients and the outcomes he seeks on their behalf.

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