The Complexity of Asset Division

Facing a personal separation involves complex decisions, which become even more delicate when marital assets include businesses or company shares. Understanding how to protect one's interests while ensuring the operational continuity of a business is a legitimate and priority concern. Managing these assets requires not only a deep understanding of family law but also expertise in corporate and tax matters. As a divorce lawyer in Milan, Avv. Marco Bianucci has extensive experience in assisting entrepreneurs and spouses in managing these intricate situations, providing clear guidance in a time of great uncertainty.

The Marital Property Regime: The Fundamental Starting Point

The first step in determining the fate of a business or company shares is to analyze the marital property regime chosen by the spouses. Italian law provides two main regimes: legal community property and separation of property. This choice, made at the time of marriage or later, has profound implications for asset division. Under a legal community property regime, shares in partnerships and profits from corporations acquired by only one spouse after marriage fall, in principle, into the community property. This is different from the case of separation of property, where each spouse retains exclusive ownership of acquired assets, including company shares. However, complications can still arise in this scenario, for example, in the presence of a family business.

The Fate of Company Shares in Community Property

When spouses are under a community property regime, the law clearly distinguishes between the ownership of the shares and their economic value. For partnerships (S.n.c., S.a.s.) and limited liability companies (S.r.l.), shares acquired by a spouse after marriage fall into immediate community property. This means both spouses are co-owners, with consequent shared administrative and financial rights. For joint-stock companies (S.p.A.), however, the rule is different: the non-acquiring spouse is only entitled to a portion of the value of the participation at the time of the dissolution of the community property, but does not acquire shareholder status. The correct interpretation of these rules is crucial for defining each party's rights.

The Bianucci Law Firm's Approach

Protecting business assets during a marital crisis requires a strategic and multidisciplinary approach. The approach of Avv. Marco Bianucci, an expert lawyer in family law in Milan, is based on a rigorous analysis of corporate documentation and the marital property regime, aimed at identifying the most effective solution for the client. The strategy is not limited to the mere application of the law but aims to find a balance between protecting entrepreneurial assets and reaching a fair and sustainable agreement. The goal is to prevent long and costly legal battles that could paralyze business activities, favoring, where possible, negotiated solutions that safeguard the company's value and the client's rights.

Frequently Asked Questions

If my husband is the sole owner of an S.r.l., am I entitled to a share in case of separation?

The answer depends on the marital property regime. If you are under a legal community property regime and the shares were acquired after the marriage, they fall into community property. You would therefore be entitled to half of their value and co-ownership. If you are under separation of property, the shares remain the exclusive property of your husband, but it will be necessary to assess whether the conditions for recognizing a family business are met, which could entitle you to a settlement.

How is the value of company shares determined for division?

The valuation of company shares is a technical process that requires an appraisal, usually prepared by an accountant or a corporate finance expert. Various methods are used, such as the asset-based approach (based on the value of the company's assets), the income-based approach (based on the company's ability to generate future income), or market multiples. The choice of the most appropriate method depends on the nature of the company and the specific circumstances of the case.

What happens to undistributed company profits at the time of separation?

Undistributed profits, but set aside as reserves, represent an increase in the company's net equity and, consequently, in the value of the shares. Under a legal community property regime, this increase in value must be considered in the calculation of asset division. Therefore, even if not directly received, retained earnings contribute to determining the amount due to the non-shareholder spouse.

Do I risk losing control of my company due to divorce?

This is a common fear. Under a legal community property regime, the non-shareholder spouse can become a co-owner of the shares, acquiring voting rights that could influence management. To avoid this risk, it is essential to act strategically, for example, through separation agreements that provide for the economic settlement of the spouse's share or the establishment of shareholder agreements. Careful legal planning is essential to protect corporate governance.

Contact Avv. Marco Bianucci for an Assessment of Your Case

The division of business assets is one of the most complex challenges in family law. Entrusting yourself to a professional with specific expertise in the matter is the fundamental step to protect your rights and the future of your business. If you are facing a separation and own or are involved in a business, contact the Bianucci Law Firm in Milan. Avv. Marco Bianucci will provide a confidential and detailed analysis of your situation, outlining the most effective strategies to protect your assets and reach a fair and definitive solution.