If you have ownership in a business when you marry and do not want it to become marital property that is shared with your spouse during the marriage and/or any potential divorce, it's essential to take legal actions to maintain the business as separate property.
A Prenup Is Just the First Step
A prenuptial agreement is generally recommended for any couple where one of them owns a business. In the prenup, you can designate that it is separate property owned solely by you (and any others who have a stake in it).
However, a prenup will only protect your interest in your business if you take the appropriate steps afterwards. For example, you need to make sure that you don't mix any of your business expenses with personal ones -- particularly if those personal expenses are for things shared by both of you, such as homes or cars.
Further, you should not accept financial or any other type of assistance from your spouse with the business. Once you do that, your spouse could make a claim that he or she is owed a share of the business should you split up.
What About a Postnup?
If you don't protect your business with a prenup or if you didn't have a business when you got married, you can seek similar protections via a postnuptial agreement. Those can be more difficult to convince a spouse to agree to, particularly if a divorce may appear to be imminent.
Even if you have a prenup or postnup in place to protect your business, your spouse may be able to make the case in a divorce that he or she sacrificed pursuing a career or other opportunities so that you could build and run the business. That spouse may be granted proceeds from the business or perhaps a share of it in order to even out your financial situations post-divorce.
It's essential to discuss these potential issues with a family law attorney prior to getting married or as soon as you start your own business, no matter what the size. He or she can help you protect the business you've worked hard to build.
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