124.104 Who is economically disadvantaged?
(2) When married, an individual claiming economic disadvantage must submit separate financial information for his or her spouse, unless the individual and the spouse are legally separated. SBA will consider a spouse’s financial situation in determining an individual’s access to credit and capital where the spouse has a role in the business (e.g., an officer, employee or director) or has lent money to, provided credit support to, or guaranteed a loan of the business. SBA does not take into consideration community property laws when determining economic disadvantage.
This means that both the applicant (individual claiming disadvantage) and his or her spouse must submit a separate personal financial statement during the 8(a) Application process, unless:
They are legally separated.
and;
The SBA will not split all assets and liabilities 50/50 unless they are jointly owned or there is a pre and/or post nuptial agreement that details which assets are held by one individual or another, separately.
§124.105 What does it mean to be unconditionally owned by one or more disadvantaged individuals?
(k) Community property laws given effect. In determining ownership interests when an owner resides in any of the community property states or territories of the United States (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Puerto Rico, Texas, Washington and Wisconsin), SBA considers applicable state community property laws. If only one spouse claims disadvantaged status, that spouse’s ownership interest will be considered unconditionally held only to the extent it is vested by the community property laws. A transfer or relinquishment of interest by the non-disadvantaged spouse may be necessary in some cases to establish eligibility.
This means that the applicant (individual claiming disadvantage) and their spouse must execute a community property transmutation agreement to ensure that they have transferred or relinquished the proper percentage of ownership held within the applicant firm so that the applicant has unconditional ownership of the applicant firm that is applying for the 8(a) Program.
If you need a template to prepare an acceptable Community Property Transmutation Agreement, please visit our shop that contains a template for purchase.
