One major concern for business owners going through a divorce, other than the issue of valuing the business and the practicalities of day-to-day operations (for small, closely-held businesses), includes the business tax issues that come along with a divorce. Our family law and divorce attorneys here at Woodruff Family Law Group in Greensboro are experienced in handling these types of issues incident to a divorce. Having an attorney who is knowledgeable about family law issues as well as business tax issues at your side during this difficult time can make a complicated process smoother and more simplified.
Section 1041 of the Internal Revenue Code has regulations that describe how you can use a redemption of stock in divorce settings. A redemption occurs when the corporation purchases stock from a stockholder. The goal of the redemption is usually to have the corporation transfer a promissory note or cash to the stockholder and have the stockholder transfer all of his or her stock to the corporation.
The redemption should not be finalized until after the absolute divorce, although negotiations regarding the terms of the redemption can occur before the absolute divorce. Typically, the stockholder usually seeks capital gain treatment for the distribution from the corporation, rather than divided treatment. Followed properly, this allows cash to be taken out of the company in exchange for stock at capital gains rates.
Cash is usually the big problem in divorce. Cash may be obtained from a 401k without penalty via a QDRO (Qualified Domestic Relations Order) in the divorce setting. A QDRO is simply a court order given to the administrator of the retirement plan directing that administrator to make payments to both ex-spouses. For example, if the 401k is in the ex-husband’s name and there is a valid QDRO entered directing the plan administrator to pay 50% of the payments to the ex-wife, once the ex-husband begins receiving payments (after his retirement) the administrator must remit half of each payment to the ex-wife. This special exemption regarding obtaining cash without penalty only applies to a 401k pursuant to the terms of a QDRO; it does not apply to IRAs.
As you can probably see from the information provided above, business tax issues concerning divorce can be complex with numerous hoops to jump through in order to properly obtain the outcome that is most beneficial to you. Having an experienced attorney at your side that is knowledgeable in the business tax area, along with its relation to divorce matters, can assist you throughout this process and ensure that everything is conducted properly and in your best interests. Just about anyone can tell you that dealing with tax matters is quite complicated with numerous guidelines and regulations. The advice of an attorney with expertise in the area can be invaluable to your case.
Contact us today to set up an initial consultation regarding business tax issues for divorce, or any of the many other family legal services that we provide. Our experienced and competent family law and divorce attorneys have the knowledge and skill to assist you.