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Ely, Counselor at Law
Category: Legal
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Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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i am in sacramento california. i have a small business with

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i am in sacramento california. i have a small business with a lease that ends in about 9 years. my husband is on the lease with me and owns everything fifty percent. i cannot be evicted without him being served and he has the right to use the premises or whatever. recently i was sued by my landlords and lost. they have a judgement against me now. i filed bankruptcy. they are furious and are now searching for assets which i have none. my husband and i are separated. he allows me to write the business off on my taxes because i have custody of his kids and this is my only source of income. the people who have the judgement are now trying to say i own the business 100 percent and exclude my husband as fifty percent owner just because i file the business on my taxes. i file single but put partnership for the business on the tax forms. the creditors effort is to really try and take over my lease and small business by saying i have this as an asset. with my husband as fifty percent owner, my bankruptcy exemptions eat up my portion of the assets. question: can they exclude my husband from being fifty perent owner just because i file the income from the business on my taxes and second if so, would him filing one deduction of the business, lets say he deducts advertising costs on his taxes but nothing else, would this reinstate him as fifty percent owner.
Submitted: 5 years ago.
Category: Legal
Expert:  Ely replied 5 years ago.

Thank you for the opportunity to assist you. Please remember that there might be a delay between your follow up questions and my answers because I may be helping other clients or taking a break.

Are you incorporated?

Customer: replied 5 years ago.

no sir. i only have a dba. and the lease is made out to me and my husband and mind you the lease was an inherited lease that transferred to these people from the old building owners.
Expert:  Ely replied 5 years ago.
I understand. No, in this case they cannot exclude him as the 50% business owner simply because you are the one that is writing off the business - that is not indicative of who owes it, alone. It WOULD be a good idea for him to do some deductions, but here, there is no law that addresses this per se. If they press the issue, what you have to do is to file a PETITION FOR DECLARATORY JUDGMENT under Calif.Code.Civ.Proc. § 1060-1062.5. A Declaratory Judgment is a judgment by the Court that interprets confusing situations and contracts and declares the rights, duties, or obligations of said situation. In short, it’s a kind of petition which basically says "Judge, here is what happened, now it’s a mess and not clear, so can you please fill in the blanks for us with what is contractually fair and legally equitable and make everyone bound by it?"The good thing is that half the time, when the opposing party gets served, they either will contact you and offer a compromise or just give up, because people are both (1) afraid of the legal system and (2) do not have the time and money to deal with an issue.

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