I’m really sympathetic to the woman who wrote me this question, but I think I have bad news for her. Maybe the good news I that I’m not an attorney, so I have no real expertise.
In her question she refers to who owns your business name, an old post of mine on this blog. Here’s what she says:
Scenario: couple are dating, he opens a restaurant/pub, then renames it with her Irish surname – Irish bars are big where they live! They get married, pub is trading under her Irish name. Sadly, 4 years later they are divorcing. He continues to own/run the pub, still with her name on it. She worked there too, enhancing the Irishness of it. But because he owned before they were married, she cannot claim any ownership under communal property laws, despite having loaned the company $38k which she will have to sue for to have returned. (He obviously feels the loss of her Irishness and her name as he has set himself up with a Facebook page using his first name and her Irish maiden name!!)
So, does she own the name, her name? Can she request he change the name? Can she use the fact that he used and continues to use, her name to establish a successful and profitable business in any way? He is refusing to provide spousal support etc etc.
First: she should contact an attorney with a practice that includes general small business. Ask around for recommendations, and if she doesn’t know anybody who might know, she should go to her nearest Small Business Development Center (SBDC) and ask there. This is worth talking to an attorney about.
Second: my non-attorney guess, based on my own experience in business, is that she can’t do anything. Anybody who wants can name a bar by any invented last name, it’s legal as long as it doesn’t conflict with a business that already exists. And once the business is established under that name, how the name was chosen and its association with anybody else’s name doesn’t make a difference.
You don’t own your own name for business purposes. People whose last name is McDonald can’t open a McDonald’s hamburger restaurant without getting sued by McDonald’s for trying to create confusion and trade on that company’s reputation. I think that’s pretty much the way the law works, a lot like I said in that earlier post you cited.
But she should still contact an attorney because I’m not an attorney so I can’t give you legal advice, just my layman’s guess. Maybe in this special case there is something she can do. It’s worth asking a real attorney.
I think, as you suggested, her best option would definitely be consulting an attorney. There have been cases where people have successfully claimed in similar situations, however I do think that in each situation I know of, the couple was married when the business was formed.
What might/might not work in her favour is whether she has any proof of loaning the business 38k and how it was applied in “the books” so she might have a case to at least get her 38k back with interest, if it was properly recorded.
The other thing though is that he can claim that he chose the restaurant’s name, not to name it after her (else he would have used her full name) but because he’s always like the name and know other people with it, especially as it’s a last name, which can be associated with anyone who has that Irish last name.
On another note, though, if she acknowledges that HE owned the restaurant and it’s obvious her “Irishness” is no longer there for the restaurant to benefit from, why does she feel entitled to spousal support, unless they have children together, which she has not mentioned in the above scenario?
I think she should concentrate on proving her loan to the business so as to get her money back, bearing in mind a loan is not the same thing as a stake in the business unless that was their formalised agreement.
Btw, I’m not an attorney either so this is just my opinion and she should consult an actual attorney, as previously advised.