Co z biznesem jednego małżonka po rozwodzie?

„Jestem w trakcie rozwodu, a przede mną sprawa o podział majątku. Niestety szykuje się walka o pieniądze z mojego biznesu, dużego biznesu, bo to sieć sklepów spożywczych. Dwa sklepy miałem jeszcze przed zawarciem małżeństwa, ale dwa kolejne powstały w trakcie małżeństwa. Nie mieliśmy z żoną intercyzy. Potrzebuję fachowej pomocy prawnika, bo chciałbym zachować te wszystkie sklepy”.


Firma prowadzona wspólnie lub TYLKO PRZEZ JEDNEGO MAŁŻONKA wchodzi w skład majątku wspólnego!

Jeżeli firma została założona PRZEZ JEDNEGO MAŁŻONKA przed zawarciem małżeństwa, to w skład majątku wspólnego wchodzą inwestycje poczynione na rozwój firmy w trakcie trwania małżeństwa. To co zostało zakupione przed zawarciem małżeństwa – jest majątkiem osobistym, a to co zostało zakupione po zawarciu małżeństwa wchodzi już do majątku wspólnego – majątku, który dzielony jest PO POŁOWIE.

Drugi małżonek, który nie prowadził z nami biznesu, ma prawo wyboru, czy chce podziału firmy, czy uzyskania tylko niektórych jego składników czy też pieniędzy w zamian za te składniki. Oczywiście sąd bada żądanie strony pod kątem RACJONALNOŚCI i jeżeli chce ona podziału firmy, to sąd zbada czy jest to MOŻLIWE i RACJONALNE, bądź jeżeli będzie chciała zatrzymać na przykład maszyny, a druga strona ma prowadzić firmę, to sąd nie przyzna maszyn temu, kto prowadzić biznesu NIE BĘDZIE. Co więcej, jeżeli większość składników firmy należy do majątku osobistego jednego z małżonków, to podział firmy nie będzie również możliwy.

Poza tym podział firmy może być niekorzystny dla drugiego małżonka, o ile zda on sobie sprawę z tego, że przedsiębiorstwo to nie tylko aktywa (nieruchomości, urządzenia, samochody, środki pieniężne), ale także pasywa (długi, zobowiązania). Sąd natomiast dzieli TYLKO aktywa.

Co więcej, sąd może zarządzić podział firmy poprzez sprzedaż, jeżeli żadna ze stron nie chce przejąć biznesu bądź jeżeli ten, kto przejmuje biznes nie jest w stanie spłacić drugiej strony (sąd zbada wypłacalność tego, kto przejmuje biznes!). Oczywiście sprzedaż zarządzona przez sąd jest niekorzystna, bo nie uzyskamy satysfakcjonującej ceny, a poza tym zapłacimy jeszcze za koszty komornika.

ZASADA:

Majątek można podzielić samemu (wspólnie na piśmie, jeżeli nie ma sporu między małżonkami, a w jego skład nie wchodzi nieruchomość), u notariusza bądź w sądzie! W każdym wypadku należy ustalić skład majątku wspólnego i wartość poszczególnych składników tego majątku. Wartość majątku ustala się na podstawie stanu z dnia ustania małżeństwa, natomiast ceny z dnia podziału!

A CO W PRZYPADKU INTERCYZY?

Jeżeli małżonkowie zawierali umowę majątkową, tzw. intercyzę, to nie firma, ale dochody uzyskiwane z biznesu są wspólne. Nawet gdy zostały zainwestowane w firmę – należą się w połowie drugiemu małżonkowi.

Sprawa w SĄDZIE:

Gdy spór co do dalszych losów biznesu trafi jednak do sądu, to potrzebne będą DOWODY (dokumenty, zeznania świadków), a w razie sporu co do wartości składników majątku sąd powoła BIEGŁEGO. Biegły niezbędny jest także do prognozy dalszego rozwoju firmy, ponieważ ten, kto zatrzymuje firmę, będzie uzyskiwał zysk z racji działania firmy na rynku. Gdy firma ma renomę, wówczas ten zysk jest bezsprzeczny. Tak więc w przypadku dobrze prosperującej firmy, jej wartość będzie dodatkowo powiększona o to, co firma może zarobić w przyszłości. Biegły do badania prognozy musi przyjąć właściwą metodę wyceny – majątkową, dochodową albo porównawczą. Warto tego typu sprawę zlecić adwokatowi, ponieważ rodzaj wyceny zależy od rodzaju i wielkości firmy, a zdarza się, że biegły przyjmuje niekorzystną metodę tej wyceny.

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