Property is not divided into shares. Business companies
MODULE 1.2. ORGANIZATIONAL AND LEGAL FORMS OF ECONOMY OF LEGAL ENTITIES
The market economy implies a significant variety of organizational and legal forms of enterprises. This is explained by the fact that one part of the country's national economy is owned and managed by private citizens, either individually or collectively, while the other part is managed by organizations established by the government or local authorities. In addition, business in any state is carried out on a different scale.
An individual entrepreneur conducts business at his own expense, independently makes decisions. Its advantage is in the speed of decision-making and instant response to consumer requests. However, with this form of business organization, financial resources are limited, which does not allow large-scale production. The limited scale of production is the reason for high costs and low competitiveness.
Combining individuals and legal entities to conduct joint activities allows you to increase the amount of attracted production resources. At the same time, at enterprises with several owners, the efficiency of decision-making is low.
The advantages of small enterprises can be considered a good overview of the business, the disadvantage is high production costs due to limited production and financial resources.
Large enterprises have lower costs due to mass production, but they lose the efficiency of management, the interest of employees in the final results of their activities.
Commercial enterprises according to Russian legislation can be created in the form of economic partnerships and companies, in the form of unitary enterprises and production cooperatives.
Business partnerships and companies- these are commercial organizations with the authorized (share) capital divided into shares (contributions) of the founders (participants). The property created at the expense of the contributions of the founders, as well as acquired and produced in the course of the activity of the partnership or company, belongs to it by the right of ownership.
Business partnerships and companies have many features in common, but their main difference is that a partnership is an association of persons, and a society is an association of capital.
Business partnerships- can be created in the form of a general partnership and a limited partnership (limited partnership).
The main document defining the principles of activity of a business partnership is the memorandum of association .
A contribution to the property of a business partnership may be money, securities, other things or property rights, or other rights having a monetary value.
Members of a business partnership have the right to participate in managing the affairs of the partnership, to take part in the activities of the partnership. The profit received is divided between the co-owners in proportion to the shares in the share capital. In the event of liquidation of the partnership, its participants receive part of the property remaining after settlements with creditors.
Participants in general partnerships and general partners in limited partnerships may be individual entrepreneurs and (or) commercial organizations.
AT full partnership all participants are equal in their rights and obligations in the affairs of the company they have created. If they fail, they risk their own property. General partners jointly and severally bear subsidiary liability. Joint and several liability means that everyone is responsible, regardless of who is sued. Subsidiary liability means that if the property of the partnership is not enough to pay off debts, the partners are liable with their personal property in proportion to the contributions.
partnership in faith(limited partnership) is a partnership in which, along with participants engaged in entrepreneurial activities on behalf of the partnership and liable for the obligations of the partnership with their property (general partners), there are one or more participants - investors (limited partners) who bear the risk of losses associated with the activity partnerships, within the limits of the amounts of contributions made by them and do not take part in the implementation of entrepreneurial activities by the partnership.
Contributors are entitled to a share of the profits in proportion to their contribution.
Enterprises created in the form of partnerships have a number of advantages:
Each general partner has the right to engage in entrepreneurial activities on behalf of the partnership on an equal basis with others;
· general partnerships are the most attractive for creditors, since their members bear unlimited liability for the obligations of the partnership;
· An additional advantage of a limited partnership is that they can raise funds from investors to increase their capital.
Flaws:
between full partners there must be a trusting relationship;
· each member of the partnership bears full and joint and several unlimited liability for the obligations of this organization, i.е. in case of bankruptcy, each member (except for limited partners) is liable not only with a contribution, but also with personal property;
A partnership cannot be formed by one member.
Such an organizational and legal form as a general partnership is almost never found in the practice of Russian entrepreneurship. It is unpopular with entrepreneurs because it does not set limits on their liability for partnership debts. At the same time, the state does not provide any privileges for partnerships.
There are tax and credit benefits for partnerships abroad. They are widespread in the agricultural sector, the service sector (legal, audit, consulting, medical firms, etc.), trade, public catering.
Business companies may be established in the form of a joint-stock company, a limited liability company or an additional liability company.
A limited liability company (LLC) is a company established by one or more persons, the authorized capital of which is divided into shares of the sizes determined by the constituent documents; participants in a limited liability company are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of their contributions.
The supreme body of a limited liability company is the general meeting of its members. For the current management of the company's activities, an executive body is created, which may also be elected from among its members.
A limited liability company is a type of capital pooling that does not require the mandatory personal participation of its members in the affairs of the company.
Advantages of a limited liability company:
the ability to accumulate significant funds in a relatively short period of time;
Can be created by one person
· both legal entities and individuals, both commercial and non-commercial, can participate in the activity;
Members of the company bear limited liability for the obligations of the company.
Flaws:
· the authorized capital cannot be less than the value established by the legislation;
the company is not very attractive to creditors, as its members have limited liability;
The number of participants in an LLC must not exceed fifty.
An additional liability company (ALC) differs from a limited liability company in that its members are liable for the obligations of the company with their property in the amount of a multiple of the value of their contributions. In case of bankruptcy of one of the participants, its liability is distributed among the other participants. The difference from a general partnership is that the amount of liability is limited. Liability may, for example, be limited to three times the amount of the contribution.
All of the above organizational and economic forms are typical for small enterprises. Large-scale industries require a different form of attracting capital, which would ensure the stable functioning of society. In most countries of the world, such enterprises are created in the form of a joint-stock company.
joint stock company(JSC) a company is recognized, the authorized capital of which is divided into a certain number of shares; participants of a joint-stock company (shareholders) are not liable for its obligations and bear the risk of losses associated with the activities of the company, to the extent of the value of their shares.
A joint-stock company can be of open and closed type.
A joint stock company whose members may alienate their shares without the consent of other shareholders is recognized as an open joint stock company (JSC).
A joint stock company whose shares are distributed only among its founders or other predetermined circle of persons is recognized as a closed joint stock company (CJSC).
The authorized capital of a joint-stock company is made up of the nominal value of the shares of the company acquired by the shareholders.
The shareholders cannot directly control the operations of the JSC. They elect a board of directors that manages the business activities of the JSC in order to generate profits for the benefit of the shareholders.
The supreme governing body is the general meeting of its shareholders.
Earnings per share is called a dividend.
AO Advantages:
a guarantee against the fact that when its participants leave, the fixed capital of the company will be reduced;
the ability to concentrate large capital;
· the ability to quickly alienate shares, which makes it possible to almost instantly transfer large capital from one area of activity to another in accordance with the prevailing market conditions;
· limited liability of shareholders (within their shares) in case of bankruptcy of the company.
The disadvantages include the inability of all shareholders to take part in the management of a joint-stock company, since for real control one must have at least 20% of the shares. Huge capital is concentrated in the hands of individuals, which, in the absence of proper legislation and shareholder control, can lead to abuse and incompetence in its use.
Joint-stock companies appeared in Russia at the beginning of the 18th century. Demand for shares has always been high. This contributed to the emergence of a large number of enterprises of this form. According to statistics for 1911, the total number of joint-stock enterprises in industry and transport alone amounted to 821.
At the end of 1917 - beginning of 1918. the process of development of joint-stock companies has stopped. However, since 1920, their number began to grow again. At the beginning of 1925, there were over one hundred and fifty joint-stock companies. The most important area was trade and commercial and industrial activities. In the late 1920s and early 1930s, joint-stock companies were liquidated or transformed into state associations. Only two joint-stock enterprises survived: the Bank for Foreign Trade of the USSR (established in 1924) and the All-Union Joint-Stock Company Intourist (organized in 1929). In 1973, the insurance joint-stock company of the USSR - "Ingosstrakh" was created.
Production cooperatives- this is a voluntary association of citizens for joint production or economic activities, based on the personal labor participation of members of the cooperative and the association of their property shares
The main difference between a production cooperative and partnerships and societies is that it is based on a voluntary association of individuals - citizens who are not individual entrepreneurs, but participate in the activities of the cooperative by personal labor. Accordingly, each member of the cooperative has one vote in managing its affairs, regardless of the size of its property contribution. The profit received in the cooperative is distributed taking into account their labor participation of members of the cooperative. There must be at least five members of the cooperative;
The benefits of a cooperative:
Profit is distributed in proportion to the labor contribution, which creates the interest of the members of the cooperative in a conscientious attitude to work;
· the legislation does not limit the number of members of the cooperative, which provides great opportunities for individuals to join the cooperative;
· equal rights of all members, tk. each of them has only one vote.
The main disadvantages of the cooperative:
· the number of members of the cooperative must be at least five, which limits the possibility of their creation;
Each member has limited liability for the debts of the cooperative.
In the shape of unitary enterprises only state and municipal enterprises can be created.
A unitary enterprise has a number of features:
· the founder remains the owner of the property, i.e. state;
· the property of a unitary enterprise is indivisible; under no circumstances can it be distributed among deposits, shares, shares, including among employees of a unitary enterprise;
The head of the enterprise is the sole head, who is appointed by the owner of the property.
Unitary enterprises are divided into two categories: unitary enterprises based on the right of economic management; unitary enterprises based on the right of operational management.
The right of economic management is the right of an enterprise to own, use and dispose of the property of the owner within the limits established by law or other legal acts.
The right of operational management is the right of an enterprise to own, use and dispose of the property of the owner assigned to it within the limits established by law, in accordance with the goals of its activities, the tasks of the owner and the purpose of the property.
The right of economic management is wider than the right of operational management, that is, an enterprise operating on the basis of the right of economic management has greater independence in management.
Despite some restrictions on the disposal of property, a unitary enterprise has great rights in the field of production and economic activities.
Test control
1. The main disadvantage of small business :leasing property;
At the time of registration, the main activity of the enterprise was the production of food products. Subsequently, trade and agricultural production were added. The enterprise belongs
to the food industry;
When classifying enterprises by size, they usually use as the main feature?
the number of its staff;
1. The main disadvantage of small business:
high production costs;
In case of failure in the activities of the enterprise, are they liable with personal property?
full comrades;
Large-scale enterprises are usually created in the form?
joint-stock company of open type;
Is property not divided into shares (deposits)?
unitary enterprise;
Is there a time limit for a business?
it may be limited to a period specified in the charter of the enterprise;
The company is being liquidated
voluntarily or involuntarily, depending on the situation;
Company
must have a license for certain types of activities;
1. The chimney of a copper plant is an object belonging to the group:
structures;
The production inventory is
to the passive part of fixed assets;
Residential buildings included
in the group "dwellings" (non-production fixed assets);
Valuation of fixed assets at replacement cost is necessary because they
transfer their value to their products;
The original cost reflects
actual costs for the acquisition (creation) of fixed assets;
The calculation of the average annual cost is necessary because
the physical volume of fixed assets changes during the year;
Does the depreciation rate of fixed assets adequately reflect their physical condition?
No, this is an accounting indicator;
Physical depreciation of fixed assets takes place
when exposed to aggressive environments;
Yes, because it leads to lower production costs;
Depreciation of fixed assets
the process of transferring the value of fixed assets to the product produced with their help;
The useful life is
the period of time based on the duration of which depreciation is calculated;
The depreciation rate is set according to
useful life;
The straight-line method of depreciation is appropriate if
time, not obsolescence, is the main factor limiting service life;
Does not allow you to write off the entire cost without a balance method
reducing balance method;
Accelerated depreciation allows
maintain fixed assets at a high technical level;
High exit and renewal rates indicate that
the enterprise is undergoing reconstruction;
The ratio of extensive use of fixed assets shows
efficiency of their use in time;
If the cost of fixed assets used in production increases,
return on assets decreases;
return on assets is measured
in rubles per ruble;
Can a literary work be included in intangible assets?
yes, the object refers to the results of intellectual activity;
Trademarks are included in
means of individualization;
The value of intangible assets for an enterprise lies in the fact that their use
increase the competitiveness of products;
Can intangible assets be valued at residual value?
yes, since their cost is transferred to the cost of finished products for a long time;
When is the cost of an intangible asset not depreciated?
if the useful life is not set
The current market value of an intangible asset is set
after the revaluation;
Should an enterprise reflect the value of its own business reputation in the balance sheet?
no, such a line in the balance sheet appears only when another company is purchased;
Should goodwill be amortized?
yes, because the influence of the factors that make up business reputation weakens over time;
Not included in working capital
means of labor with a service life of more than 12 months;
Finished products
included in the circulation funds, refers to the normalized working capital;
Basic costs
costs associated with the technological process and costs associated with the maintenance and operation of tools;
Direct costs
costs associated with the production of only this type of product;
Gross profit is
the difference between the proceeds from the sale of products (works, services) and the cost of products (works, services);
Current assets include
cash balances;
final test
1. Economic partnership:
association of persons;
Working capital structure
the share of each element in their total cost;
Overheads
costs for maintenance and management of the production process;
37. Indirect costs:
costs that, in the presence of several types of products, cannot be attributed directly to any of them;
Average variable costs
do not change with the growth of production volumes;
41. Profit characterizes:
the economic effect received as a result of activity of the enterprise;
Economic profit is
the difference between revenue and internal and external costs;
Net income is
profit of the enterprise after taxes;
The asset balance reflects
fixed assets and intangible assets, inventories and costs, cash…;
Can't be the main activity of a manufacturing enterprise?
leasing property;
Joint-Stock Companies
Limited liability companies (a business company established by one or more legal entities and/or individuals, the authorized capital of which is divided into shares; the participants of the company are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of their shares in the authorized society's capital.)
Companies with additional liability (a company founded by one or more persons, the authorized capital of which is divided into shares of the sizes determined by the constituent documents; the participants of such a company are jointly and severally liable for its obligations with their property in the same multiple for all of the value of their contributions, determined by the constituent documents of the company .)
20. Production cooperatives. State and municipal unitary enterprises.
Production cooperative(artel) - a commercial organization created by a voluntary association of citizens on the basis of membership for joint production and other economic activities based on their personal labor and other participation and the association of property shares by its members (participants). The charter of a production cooperative may also provide for the participation of legal entities in its activities.
Unitary enterprise- a special organizational and legal form of a legal entity. A commercial organization that is not endowed with the right of ownership of the property assigned to it by the owner. The property is indivisible and is not distributed among deposits (shares, shares), incl. between employees of the enterprise. In addition to the information specified in paragraph 2 of Art. 52 of the Civil Code of the Russian Federation, the legal status of state and municipal unitary enterprises is determined by the Civil Code and the law on state and municipal enterprises.
UP- a commercial organization that is not endowed with the right of ownership of the property assigned to it by the owner. Such enterprises are called unitary, since their property is indivisible and cannot be distributed among deposits, shares, shares, shares.
The founding document of a unitary enterprise is the charter.
Unitary enterprises are divided into two types:
1) Unitary enterprises based on the right of economic management - is created by the decision of the authorized state body or local self-government body. The founding document of an enterprise is its charter, approved by an authorized state body or local government. The size of the authorized capital of an enterprise cannot be less than the amount determined by the law on state and municipal unitary enterprises.
Prior to the state registration of an enterprise, its statutory fund must be fully paid by the owner. If at the end of the financial year the value of the enterprise's net assets turns out to be less than its statutory fund, then the body authorized to create such enterprises is obliged to reduce the size of the statutory fund in accordance with the established procedure. If the value of net assets becomes less than the minimum amount of the authorized capital determined by law, then the enterprise may be liquidated by a court decision. When deciding to reduce the statutory fund, the enterprise is obliged to notify its creditors in writing, who may demand the termination or early fulfillment of obligations to which this enterprise is a debtor, and compensation for losses.
The owner of the property of the enterprise is not liable for the obligations of the enterprise, except for the cases provided for in paragraph 3 of Art. 56 of the Civil Code of the Russian Federation.
2) A unitary enterprise based on the right of operational management - is formed in the cases provided for by the law on state and municipal unitary enterprises by decision of the Government of the Russian Federation on the basis of property that is in federal ownership. Such an enterprise is called a state-owned enterprise, the constituent document of which is the charter approved by the Government of the Russian Federation. The firm name of the enterprise must contain an indication that it is a state enterprise. Russia bears subsidiary liability for the obligations of such an enterprise if its property is insufficient. The enterprise may be reorganized or liquidated by decision of the Government of the Russian Federation.
21. Ways and limits of the exercise of civil rights. Objects of civil legal relations.
In accordance with paragraph 1 of Art. 9 Civil Code citizens and legal entities at their own discretion carry out the them civil rights. This means that all issues related to the use of subjective rights, including the scope and methods of their implementation, as well as the waiver of subjective rights, their transfer to other persons, etc., are resolved by authorized persons at their own discretion. For example, a creditor in a loan obligation can not only demand the return of a debt, but also lay it down from the debtor, reduce its size, assign its right to claim to another person, etc. At the same time, the refusal of citizens and legal entities to exercise their rights does not entail termination these rights, except as provided by law.
Limits to the exercise of civil rights- these are the legislatively outlined boundaries of the activities of authorized persons to realize the opportunities that make up the content of subjective civil law.
Objects of civil legal relations(Articles 128-129) are various material (including material) and intangible (ideal) benefits or the process of their creation, which are the subject of activity by a subject of civil rights. Article 128 contains a list of such objects: a) things, including money and securities, other property, including property rights; b) works and services; c) information; d) results of intellectual activity and exclusive rights to them (intellectual property); e) intangible benefits.
GPO objects are often referred to as GPO objects. It is well known that the object of legal regulation can be the behavior (activity) of people, and things and other material and non-material benefits constitute the object of the corresponding actions of software subjects. But such M and NM benefits become objects not only of rights, but also of obligations, which together are the content of the GPO. Thus, the category of a GP object coincides with the concept of a GP object.
22. Ownership and other property rights.
Ownership includes the right to own, distribute, own a thing, i.e. the owner has the right to perform any actions not prohibited by law with respect to the property belonging to him, and the owner bears the burden of maintaining the property belonging to him, the risk of his accidental death.
Subjects of ownership:
The Russian Federation recognizes private, state, municipal and other forms of ownership, i.e. Citizens, legal entities, the Russian Federation, subjects of the Russian Federation and municipalities can be the owner of the property.
Basis for acquisition of ownership:
1. Creation of a thing.
2. By virtue of an act of a state authority or local government (privatization of an apartment)
3. Death of a citizen.
4. On the basis of a paid contract (purchase, sale, exchange, donation).
Grounds for termination of ownership:
1.Foreclosure of property for obligations.
2. Confiscation.
3. Nationalization.
4. Redemption without the owner of the contained thing.
Other property rights:
1. The right of lifetime inheritable possession.
2. Easement (the owner of real estate has the right to demand from the owner of a neighboring land plot the right of limited use of this land plot).
3. The right of economic management (Article 294.296 of the Civil Code of the Russian Federation)
4. The right of operational management.
23. Obligations in civil law; general provisions.
By virtue of an obligation, the first person, called the debtor, undertakes to perform in relation to another person, called the creditor, determines the action, for example, to perform work, to transfer property.
Obligations arise from the contract, as a result of causing harm and on other grounds.
The obligation must be performed properly, unilateral refusal to fulfill the obligation is not allowed.
The fulfillment of an obligation may be secured by a penalty, surety, pledge, etc.
24. Fundamentals of inheritance law of the Russian Federation.
In the event of the death of a person. The named testator, all the property belonging to him, as a single whole complex, as well as the obligations associated with it, are transferred to another person, called the testator (heir).
Inheritance is carried out by law and by will.
Inheritance by law:
Heirs of the 1st stage (children, spouse, parents of the testator, grandchildren)
2 queues (brothers and sisters, grandparents)
3 turns (uncles and aunts)
Among the lines of heirs, heirs of the obligatory line are distinguished, who were dependent on the testator at the time of his death.
The heirs of the obligatory line participate in the inheritance along with the main heirs.
testamentary succession
A will is understood as a written will of the testator, by which he disposes of the property belonging to him. The application is subject to a notarial certificate, except as otherwise provided by law.
A will may be closed or open. The text of the open one is known in advance, and the closed one, only when announced after the death of the testator. The acceptance period is 6 months.
25. Grounds for the emergence of civil rights and obligations. Exercise of civil rights. Protection of civil rights. General characteristics of ways to protect civil rights.
The divorce procedure is not difficult if the spouses do not have mutual claims against each other regarding the division of joint property, and there are no mutual disputes regarding the children, with whom they will live and how alimony will be paid on them. But if there is no agreement between the divorcees, they are not inclined to make concessions to each other, then they will have to sort out their relationship in court. To a greater extent, this refers to the property that the spouses used during the marriage. It is in this field that the ex-husband and wife offended by each other begin to sort things out, which of them paid for what, and what each of them will use after the dissolution of the marriage.
Raises a lot of questions. Despite the fact that the legislator in the Family Code of the Russian Federation established the rules governing this issue, he failed to describe all life situations. Most often, qualified legal assistance is required to distribute the shares of spouses among all the good that they enjoyed during marriage. An attempt to resolve controversial issues on your own can lead to errors and fatal consequences, as a result of which the personal property of the spouses will be subject to division or, conversely, the property that is considered jointly acquired will not be divided.
Rules for the division of property in a divorce
The Family Code of the Russian Federation fixed in Article 38 the basic principles from which it is necessary to proceed when allocating shares of jointly acquired property. So, everything that the spouses have acquired during marriage, they can share either when drawing up a written agreement, or through the court, during a court session. In the first case, the practice is to draw up an agreement in the form of a marriage contract. In order to give it legal force, it is notarized. If such an agreement is not certified by a notary, while saving a ridiculous amount of money, then the risk that this agreement reached by the court will not be taken into account increases. That is, if, with an agreement reached, which will be written on paper, one of the spouses has the intention to challenge it, it is highly likely that this agreement will not play any role during the trial.
The judge will look at the paper, where some agreements are written between the divorcees, which are contrary to the current legislation, and will listen to both sides. The chances that he will take this agreement into account are not very high, especially if any of the parties insists not to take this agreement into account. The greatest likelihood that the court will make a decision, guided by the prescribed rules of law. Another thing is when this agreement is notarized. Then it will have legal force, even if it is contrary to some rules of law governing how property should be divided. The judge will without fail accept this paper for consideration and will take it into account when making a decision.
Since we are talking about proceedings in court, it is worth noting that the spouses regarding the division of jointly acquired property can immediately go to court. This happens when there is no agreement between them, therefore it is not possible to draw up a written agreement, and in order to receive the shares due to them, it is only necessary to go to court. Unlike the first method, when a divorcing husband and wife need to draw up a written agreement, the division of all acquired property may require many months.
If you need to share property
The main disputes arise around in which the spouses lived or used. When dividing it or when allocating shares from real estate, the court proceeds from the fact that both the husband and wife are entitled to half of it. Children are not included in this case. That is, the principle of equality applies between spouses. But at the same time, the main question that is clarified in court is what kind of property belongs to the joint, and what does not belong to it. The fact is that not everything that the spouses used during marriage is subject to division. To make it clearer, let's look at an example from practice.
The ex-husband files a lawsuit demanding that the house and apartment acquired during marriage be divided into equal shares between him and his ex-wife. In the lawsuit itself, he referred to the law, which recognized his right to half of the acquired housing. The Court of First Instance refused, and the Court of Appeal left the decision of the Court of First Instance unchanged. What's the matter? Or does the law work selectively? In fact, not all property acquired during marriage is considered joint. That is, things, real estate are subject to division if they were bought during marriage and the regime of joint ownership applies to them. But there are things that were bought during this period and this regime does not apply to them.
In this case, it turned out that the apartment and the house were purchased at the expense of the funds that belonged to the wife before marriage. Some of them she inherited, and some was earned during her business activities before she got married. This means that the capital for which the property was purchased during the marriage is not joint, and therefore the shares of the spouses are not allocated from the apartments and houses purchased with it. The property is wholly owned by the wife.
What property is considered jointly acquired?
The legislator clearly divided what falls under the regime of joint ownership and is subject to division, and what does not fall under this regime, and therefore remains in the personal property of its owner entirely. All types of income fall under this regime, from wages, pensions, income from entrepreneurial and intellectual activities to all things and real estate acquired for these incomes.
Accounts, bank deposits, purchased securities are subject to division between spouses. This happens, regardless of the size of the income of each of the family members. The wife may not work at all, but at the same time claim half of all property acquired during the marriage that falls under the joint regime. The court may deviate from these principles and reduce the share of one of the spouses if it is proved that he did not work for no reason, led an immoral lifestyle, committed actions that caused damage to property. This applies if the husband is an alcoholic or drug addict. If the wife does not work without any good reason, there are no children in the family, and a hired person looks after the house, the apartment, then in this case the judge may reduce the share of the spouse.
From what property will the court not allocate shares?
As mentioned above, in the course of considering the example, if the spouses have some property acquired before marriage or during marriage, but with funds received before marriage, then it is not subject to division between the divorcing husband and wife. The same applies to the good that a husband or wife receives during marriage by inheritance or gift. However, there are cases when it is very difficult to prove that an apartment or a car was purchased at the personal expense of one of the spouses.
For example, a husband and wife decide to buy an apartment. Half of the cost of the apartment is paid by the wife's mother, who personally transfers this money to her daughter. During a divorce, the husband claims half of the apartment, although he should have claimed only half of the half, that is, a quarter. It was half of the apartment that was purchased for the joint income of the spouses. But during the trial, it turned out to be difficult to prove that the purchase of half of the apartment was fully financed by the mother-in-law. The money was not transferred through a banking institution. It was difficult to prove the nature of their appearance, which played into the hands of the spouse. You can prove the source of such money, if before that an apartment or something else significant is being sold that belonged to one of the spouses before marriage or to the parents of one of the spouses.
But sometimes the court takes into account the evidence and the result of consideration of the possible source of these funds. If the income of the spouses did not allow making such acquisitions, while the income of their parents could well provide such purchases, in combination with evidence, the court may come to a conclusion about the source of the funds and make an appropriate decision.
Also, no shares are allocated from personal property, everyday items and children's things that pass to the adult with whom the children live. If some deposits were previously made for children, savings accounts were opened, they are also transferred to the parent with whom the children remain. As for personal property, it will not include jewelry and things that are considered luxury. The former refers to products made of precious and semi-precious metals and stones. And with luxury, not everything is so simple. The fact is that there are no direct instructions in the law on what is considered luxury and what does not apply to luxury. Therefore, the court proceeds from the total family income and the value of the thing itself. For large cities, fur coats and sheepskin coats worth less than 40 thousand rubles, the court may not classify as a luxury, while in provincial towns the court considers it necessary to list them as joint property.
Some special cases in the division of joint property
Special cases are questions about the division of property, which belongs to the cooperative. In judicial practice, it is customary to pay attention to the periods of payments made if they were made after the registration of the marriage. We are talking about savings that were made after the marriage and before the moment of the official rupture of family ties. In addition, the key issue is the time of payment in full. In cooperative housing, it is not the share of share savings that is determined, but the share in the housing itself.
For example, in marriage, the husband was a member of one housing cooperative. After the divorce, he sues his ex-wife to exchange an apartment in a cooperative building for two other apartments. The court eventually denied satisfaction to the plaintiff on the grounds that even before the termination of the marriage, the share contribution for this apartment had been paid in full. The court found that the payments were made from the joint income of the spouses, and therefore the apartment is their joint property. If the court had satisfied the claim of the ex-husband, then by doing so he would have encroached on his wife's ownership of this apartment. Similarly, the courts act in matters of division of the cooperative property of spouses, such as a dacha, a garage, etc.
Another special case related to the division of privatized housing. It belongs to the one who privatized it and is its owner. The other spouse cannot claim it, even if he is registered in this housing. According to the provisions of the Housing Code of the Russian Federation, after the dissolution of the marriage, the ex-spouse does not retain the right to use this housing. Sometimes, by decision of the judge, such a former family member may retain the right of use, but for a certain period. There must be good reasons for this, such as the absence of another living space for the former spouse in which he could live, and his financial situation does not allow him to provide himself with living space.
How to share a loan?
The question is not about a loan, but about the property that was taken on credit, a mortgage, for which a certain debt hangs. The legislator has determined very clearly that not only property rights are to be divided into equal parts between spouses, but their property obligations must also be divided in half. This means that if the apartment on the loan is divided into equal shares, then the loan is also divided into equal shares. Let's get back to the real estate issue. And what about things, household appliances, furniture, taken on credit? Credit for them is also divided into equal parts. It is believed that one of the spouses acquired all this with the consent of the second spouse.
As for a loan for an apartment, then, as a rule, it is issued to one of the family members, while the second acts as a guarantor for this loan.
The best thing to do is to divide this one common loan into two separate loans.
This will allow fulfilling obligations strictly individually. But banking institutions are reluctant to reissue one loan for two separate ones. The bottom line is that if one of the spouses stops making a monthly payment, the second will be forced to pay for it. Otherwise, the calculated penalties will affect both, and the amount of the monthly payment will increase. After all, the apartment is pledged to a banking institution, and if the loan is not repaid in full, then it can put this home up for sale for debts. What it will cost each of the former spouses later is not difficult to guess - no apartment, no money. Both the bank and the payers are well aware of this, but with the help of lawyers in each case, you can find a common solution.
How a business is divided in a divorce can become a very important issue, especially in a truly profitable enterprise.
In most cases, if the main income of the family is business profit, then only one of the spouses is engaged in entrepreneurial activity.
Does the second spouse have a right to a share in the business after a divorce? You will find the answer to this question in this article.
Does the spouse have the right to partition
If everything is simple when dividing property: it is divided in half, then with a business everything is somewhat more complicated.
When dividing a business, you should rely on the Family Code of the Russian Federation. It spells out all types of property and those incomes that will be divided equally upon dissolution of marriage.
The second spouse, who is not involved in entrepreneurial activities, has the right to sources of the family budget from individual entrepreneurs, to a share in the authorized capital of the organization. It is further clarified that property is recognized as joint, even if one of the spouses has only a part of the capital.
Any object of entrepreneurial activity during a divorce is divided in half. The issue may be resolved differently. To do this, the composition of the business is determined, property is assessed, a path is chosen that will not disrupt the stable course of affairs.
If the ex-husband and wife agree among themselves voluntarily, then the business is divided according to their decision. Otherwise, litigation is required. You can sue immediately after the official divorce, or you can still live together.
The litigation can drag on from several months to several years, so it is better not to bring it to this. Most often you have to deal with the following situations:
- One of the couple has the status of an individual entrepreneur.
- One of the former couple is engaged in commercial activities, is one of the founders.
Please note that regardless of the share of capital owned by one of the spouses, it will be divided equally when the marriage is annulled.
In a divorce, the following property is divided:
- business money;
- stock;
- shares in LLC;
- bonds;
- material.
In case of divorce, it is not subject to division:
- business established before marriage;
- a business donated or created by one of the spouses;
- objects of intellectual activity.
LLC section
To determine in which cases the spouse will not receive anything when the Limited Liability Company (LLC) is divided, you need to refer to the company's charter.
If it is initially stated that new members cannot join the company, then the party claiming a share can only receive compensation. If there are common shares and a joint share, then they are divided in half.
There is a general concept that joint shares are divided according to the rules of property. Step-by-step rules for dividing shares are not described anywhere. The value of the company is estimated. Before dividing the company, liabilities and assets, profits are assessed.
In fact, it rarely happens that the shares are divided equally, since the business will not be able to continue to function normally due to the absence of one manager. If only one person has the right to adequately manage the household, then he gets 100% of the shares, and the second is paid compensation.
Good to know: if the amount of the nominal share is 10,000 rubles, then compensation is calculated as 50% of it.
The value of the share is estimated depending on the total total value of the property of the LLC:
- assets;
- obligations of third parties;
- bank accounts;
- items owned by the LLC.
The size of the authorized capital and the value of assets may not coincide. If an LLC has a minimum authorized capital of 10 thousand rubles, then in reality it can amount to millions of rubles.
IP section
If the husband or wife is self-employed, then all profits from the activity will be divided in half.
Any objects are the property of an individual, therefore, according to the law, the second family member can claim half of the family business. It does not matter which of the spouses has the status of an individual entrepreneur, who is the legal owner.
Entrepreneurial activity not only brings income, but sometimes there are also debts. In a judicial proceeding, it is considered for what purposes the family money was spent, whether it was rational in the situation that arose.
If the income from entrepreneurial activity was spent on the purchase of real estate or the education of children, then one of the spouses is obliged to pay the second the amount in proportion to the share in the joint property. If the profit was spent on personal needs, then the court may order to pay off the debt obligations of the owner of the company in full.
Regardless of what one of the spouses was doing while the other was managing the state of emergency, all property will be divided equally. If the plaintiff demands to divide the goods that are in circulation, then the court considers the case in favor of the functioning of the individual entrepreneur.
If this can lead to the collapse of the company, then such claims are rejected. IP is divided in half if it does not harm business.
Bank deposit section
During a divorce, all property is divided in half, and currency bank accounts also fall under this rule.
All shares, deposits and bank deposits are subject to division. You can share money if it was earned during your life together.
If the second condition is met, then the court determines the need of the parties for shares. If the account is issued in the name of the child, then the parents do not have the right to claim it. If there is money in the account, they are divided exactly equally.
How the business is divided during the divorce process, see the explanation in the following video: