Home Property I am involved in a business, 3 important things to know!

I am involved in a business, 3 important things to know!

This overview will provide insight into three main areas we regularly see clients face difficulties: ‘Business Documents’, ‘Valuation of a Business interest’ and ‘Business income’.

If you are considering separation or amid a relationship breakdown, the way a business interest is treated can be rather confusing. Family businesses represent 67% of all Australian businesses and so it is not uncommon for questions to arise about their inclusion in a Family Law property dispute.

Documents

It is very common to feel unsure or hesitant around how the financial documents of a business should be treated when you separate from your spouse.
The short answer is, if it is a business in which either of you have some sort of ‘control’ i.e. are business owners, the documents are relevant and should be made available to your spouse so they can understand the relevance of the business to your Family Law property settlement.
Arguments may arise around confidential aspects of the business, but essentially the structure of the business and therefore its value in the Family Law split must be known and are only revealed through providing documents.
It may be that you find yourself stuck in a fight about whether the documents must be provided. If you believe there is a strong reason as to why the documents should not be produced, it might be worth putting up a fight. It is important to understand what the cost vs benefit is when pursuing such a fight. Sometimes it is worth putting up the fight, but a lot of legal fees can be spent unnecessarily.
If the documents are not forthcoming, it is likely to bring on urgent court proceedings and the ability to force the documents to be revealed directly from accountants/financial planners through a subpoena.
The Family Law world encourages transparency, and if you find your spouse being secretive, there are far reaching powers to get the information released.

Valuation

If there is a business interest, the value is going to be critical. This is because you need to know what each of you have prior to working out how it is going to be split between you. If the business is not sold, one of you is going to want to keep it.
You and your spouse might be able to reach a view about the value of the business, or even query the family accountant. It is usual and reasonable for suspicion to transpire around the ‘actual value’ of the business to you and your spouse, given the realities of a relationship breakdown and trust.
You may not be operating in the business and have absolutely no knowledge of how it could be valued or; your spouse might have an unrealistic view of the value given that all they can see are ‘companies’ and/or ‘trusts’ and jump to conclusion there is wealth.
If there is uncertainty, it can be helpful to engage an expert together with your spouse which is called a ‘joint’ engagement. This limits the opportunity for bias as both of you should be involved in the dealings with the valuation expert. Your family accountant may have an alliance with the spouse who has more to do with the business and may feel compromised in valuing the business.
The valuation of a business should be done early in the process of working out how you will divide assets. You don’t want to reach agreement about how the rest of your assets will be split but not have certainty to how the business will be factored in.
A valuation expert will produce a report of their findings. This includes their value/ range of values. It also helpfully provides a method on how they came up with the valuation figure.
This method can be questioned/scrutinised if it doesn’t make sense to you. You will often be invited to put questions to the valuation expert to clarify the findings.

Income

In some cases, ‘the business’ may not have a significant value to the parties if it were to be sold, but the income that is generated from the business activities is significant to assisting the family, the expenses and eventually the income of one of you.
If the business operates via a trust or company, there may be “distributions” made to other family members, who may not be active in the business. The beneficial loan accounts of any of these family members are relevant and if that income is not distributed, it may be a personal asset of that family member.
If the income of the business is being distributed to both spouses, but one is only actively working in the business, you will need to understand how to treat that income at a point of separation.

If you are separating or looking to separate from your partner and your family has a business, I can help you to understand the tips and navigate the various traps. I have experience in understanding complex asset structures, involving various third parties. The issues of whether documents should be provided where they contain sensitive information and understanding the value of a business are areas in which I enjoy guiding my clients. Don’t be scared of the unknown, I can help empower you to handle the business during an otherwise very difficult time of separation.

Specialist Family Lawyers for Sydney and Newcastle

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The information in this article is not legal advice and is intended to provide commentary and general information only. It should not be relied upon or used as a definitive or complete statement of the relevant law. You should obtain formal legal advice specific to your particular circumstance. Liability limited by a scheme approved under Professional Standards Legislation.