Divorce equity division, how to divide equity in divorce

Equity issues are complex and can be communicated on a case-by-case basis.

Divorce Equity Division:

1. If both husband and wife hold shares, at the time of divorce, both parties can dispose of their respective shares through negotiation. If the negotiation fails, the court may make a judgment after jointly entrusting an appraisal agency to evaluate the value of the shares. If the shareholders of the company are only husband and wife, and both parties are willing to continue to operate the company, they can determine their own clear equity ratios and exercise their rights as shareholders in strict accordance with the requirements of the Company Law; If both parties are unwilling to operate the company anymore, the company can be liquidated and the remaining assets of the company can be divided according to the joint property of the husband and wife; If one party is willing to continue the operation and the other party wants to withdraw, the exiting party can transfer its shares to the operator or a third party to hold it in order to obtain corresponding economic compensation.

2. If one of the husband and wife holds shares, both parties may negotiate on how to divide the shares belonging to the joint property of the husband and wife, and if the negotiation fails, the court shall make a judgment. If the husband and wife agree to transfer part or all of the capital contribution to the spouse of the shareholder, the consent of more than half of the other shareholders is required; If more than half of the other shareholders do not agree to the transfer, but are willing to purchase the capital contribution on the same terms, the people's court may divide the property obtained from the transfer of capital contribution; If more than half of the other shareholders do not agree to the transfer and are not willing to purchase the capital contribution on the same terms, they shall be deemed to have agreed to the transfer, and the spouse of the shareholder may become a shareholder of the company.

3. If a third party holds the shares on behalf of the spouses, it is necessary to first prove that the equity belongs to the joint property of the husband and wife, and then the two parties negotiate how to divide it by themselves, and if the negotiation fails, the court will make a judgment.

For the division of the company's equity in a divorce case, the judge will first examine whether the capital contribution to the company involves the joint property of the husband and wife, including the equity obtained by investment in the joint property of the husband and wife, the equity obtained by inheritance or gift (there is no written material to determine the ownership of one party), and the allotment or new shares obtained by the party who acquired the equity before the marriage and the exercise of the right of first refusal after the marriage.

Secondly, there will be different treatments to examine whether both husband and wife are shareholders of the company.

Both husband and wife are shareholders of the company, and try to guide both parties to negotiate to determine that one party will obtain all the shares of the company and compensate the other party for consideration.

If no agreement can be reached, it is advisable to attribute the company's shares to the party that actually operates the company, and that party shall pay the other party consideration compensation. If the two parties jointly operate the company, they can each hold the company's shares, and the original proportion can be reviewed and adjusted at the time of the share split.

The situation where one party is a shareholder of the company and the other party is not a shareholder of the company will be more complicated in judicial practice.

Review whether the husband and wife have negotiated to transfer part or all of the capital contribution to the spouse of the shareholder, and if so, whether the consent of more than half of the other shareholders has been obtained, and whether the other shareholders have expressly waived the right of first refusal.

If the other shareholders abstain, the spouse of the shareholder may become a shareholder of the company, and the court determines the proportion of their capital contribution.

If more than half of the shareholders do not agree to the transfer, but are willing to purchase the capital contribution at the same rate, the court may divide the property obtained from the transfer of the capital contribution.

If more than half of the shareholders do not agree to the transfer and are not willing to purchase the capital contribution at the same rate, it shall be deemed that they agree to the transfer, and the spouse of the shareholder may become a shareholder of the company.

If the husband and wife cannot reach an agreement on the transfer of the capital contribution, the shares of the company will generally be owned by one of the shareholders, and the other party will pay the corresponding discount.

When a husband and wife divorce, if one party holds shares in a limited liability company and the other party is not a shareholder of the company, how to divide the company's equity can be carried out in accordance with the following rules:

First, negotiate the split. If both husband and wife have agreed to transfer part or all of the equity to the spouse of the shareholder, and more than half of the shareholders agree, and the other shareholders expressly waive the right of first refusal, the spouse of the shareholder may become a shareholder of the company. If more than half of the shareholders do not agree to the transfer, but are willing to purchase the capital contribution with the same ** and the same conditions, the property obtained from the transfer of the capital contribution can be divided equally; If more than half of the shareholders do not agree to the transfer and are not willing to purchase the capital contribution with the same **, it will be deemed to agree to the transfer, and the spouse of the shareholder can also become a shareholder of the company;

Second, the division of litigation. By filing a divorce lawsuit, there is a court that confirms the partition plan.

Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (II).

Article 16: Where a people's court hears a divorce case involving the division of the amount of capital contributed by one party in a limited liability company in the name of one party in the joint property of the husband and wife, and the other party is not a shareholder of the company, it shall be handled separately in accordance with the following circumstances:

1) If the husband and wife agree to transfer part or all of the capital contribution to the spouse of the shareholder, and more than half of the shareholders agree and the other shareholders expressly waive the right of first refusal, the spouse of the shareholder may become a shareholder of the company;

2) After the husband and wife reach a consensus on matters such as the transfer of the capital contribution share and the transfer of **, if more than half of the shareholders do not agree to the transfer, but are willing to purchase the capital contribution with the same **, the people's court may divide the property obtained from the transfer of capital contribution. If more than half of the shareholders do not agree to the transfer and are not willing to purchase the capital contribution at the same rate, it shall be deemed that they agree to the transfer, and the spouse of the shareholder may become a shareholder of the company.

The evidence used to prove the consent of more than half of the shareholders provided for in the preceding paragraph may be a resolution of the shareholders' meeting or a written statement of the shareholders obtained by the parties through other lawful means.

How to divide the equity in the event of divorce: The spouse of the spouse can become a shareholder of the company if the spouse acquires the equity through negotiation and with the consent of more than half of the other shareholders. If the husband and wife reach a consensus on matters such as the transfer of shares and the transfer** and more than half of the other shareholders do not agree to the transfer, but are willing to purchase the capital contribution on the same terms, the two parties may divide the property obtained from the transfer of capital contribution.

[Legal basis].

Article 73 of the Supreme People's Court's Interpretation (1) on the Application of the Civil Code of the People's Republic of China on Marriage and Family.

Where a people's court hears a divorce case involving the division of the amount of capital contributed by one party in a limited liability company in the name of one party in the joint property of the husband and wife, and the other party is not a shareholder of the company, it shall be handled separately according to the following circumstances:

1) If both husband and wife agree to transfer part or all of the capital contribution to the spouse of the shareholder, and more than half of the other shareholders agree, and the other shareholders have expressly waived the right of first refusal, the spouse of the shareholder may become a shareholder of the company;

2) After the husband and wife reach a consensus on matters such as the transfer of the capital contribution and the transfer**, if more than half of the other shareholders do not agree to the transfer, but are willing to purchase the capital contribution on the same terms, the people's court may divide the property obtained from the transfer of capital contribution. If more than half of the other shareholders do not agree to the transfer and are not willing to purchase the capital contribution on the same terms, they shall be deemed to have agreed to the transfer, and the spouse of the shareholder may become a shareholder of the company.

1. If it is only the **** held by the husband and wife, if the husband and wife are willing to continue to hold the shares, the shares will be divided equally; If one of the husband and wife is unwilling to hold shares, half of the share price will be compensated to the willing shareholder; If neither husband nor wife is willing to continue to operate, the company's assets can be liquidated, and the husband and wife can divide the assets after liquidation and cancel the company.

2. If one of the husband and wife contributes capital to the third party with the joint property, the equity is directly transferred, or the equity is not transferred between the husband and wife, and the spouse who holds the shares will compensate the other party in the form of money after discounting the shares that belong to the other party.

Legal basis] Article 39 of the Marriage Law, in the event of divorce, the joint property of the husband and wife shall be disposed of by mutual agreement; If the agreement is not reached, the people's court shall make a judgment based on the specific circumstances of the property and the principle of taking care of the rights and interests of the children and the woman. The rights and interests enjoyed by husbands or wives in the contracting and management of family land shall be protected in accordance with law.

1. Direct Transfer.

If one of the husband and wife who divides the equity is not a shareholder of the Company, it can be handled by referring to the method of transfer of capital contribution from a shareholder to a person other than a shareholder. According to the Company Law, the following conditions must be met for this method:

1. The convening of a shareholders' meeting must be approved by more than half of all shareholders;

2. Shareholders who do not agree to the transfer shall purchase the capital contribution of the transfer, and if they do not agree to purchase the capital contribution of the transfer, they shall be deemed to have agreed to the transfer;

3. The husband and wife as the transferee must meet the conditions for being a shareholder as stipulated in the articles of association.

2. Compensation for valuation.

Compensation means that the shares that should be divided between one of the shareholding spouses and the other party are discounted and paid to the other party in monetary terms, and all the shares are still owned by the original shareholder.

3. Auction Division.

If the shares of a limited liability company are held, and neither spouse is willing to continue to hold the shares, they can be auctioned and then divided.