RIGHTS OF PARTNERS WHO WITHDRAW AND LEAVE A NEW JERSEY PARTNERSHIP
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Partnership Attorney
NJ partnership law uses the term dissociation to describe a partner’s voluntary or involuntary decision to withdraw from a partnership. Dissociations are divided into “rightful disassociations” and “wrongful dissociations”. Wrongful dissociations include those in which: 1) a partner breaches an express provision of the partnership agreement; 2) a partner within a partnership becomes a debtor in bankruptcy or is expelled from the partnership by a judgment of a New Jersey Court.
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The consequences of a wrongful dissociation under New Jersey law include: 1) potential personal liability to the partnership and to the other partners for the economic losses and damages caused by the wrongful dissociation; 2) forfeiture of the right to be participate in any decision to wind up and terminate the partnership; 3) forfeiture of the right to participate in on-going partnership decisions; and 4) forfeiture of the right to vote against the dissolution of the partnership. In addition, a partner who wrongfully dissociates from the partnership prior to the expiration date set forth in the partnership agreement is not entitled to immediate payment of their buyout price until the partnership or individual partners are able or willing to make payments if to do so will cause undue economic hardship to the partnership.
As is the case with the admission of new partners, the liability of withdrawing partners from a New Jersey partnership is also limited, unless wrongful. A disassociation does not in and of itself, release the dissociating partner from his or her liability from all previously incurred debts, and obligations of the partnership. If a dissociated partner is being brought out by the other partners he or she can be indemnified by the partnership for all existing partnership liabilities, but this indemnification will not be binding upon creditors absent their consent. A disassociated partner is however, released from further personal liability, for future partnership obligations, absent his or her consent to assume future obligations. A partner may also be discharged from existing liability, by an agreement between the partner, the partnership creditors, and the partners continuing in the business.
Under New Jersey law, if a partner wants out (whether voluntary or not) the partnership does not automatically dissolve. Instead, the partnership and its member(s) has the first option to buyout the withdrawing partner at the fair value of the partnership interest. In the event that the partnership chooses not to offer a buy out of the partner’s interest or the parties cannot agree on a buyout price, the withdrawing partner must then bring legal action before the Superior Court requesting a court to establish a buyout price or dissolve the partnership. This legal action must be filed within 120 days after the partnership has made an offer of payment, or within one year of the partner’s written demand for payment which is not accepted by the partnership or no action is taken by the partnership on the offer.
A legal dissolution does not automatically terminate the partnership. The partnership continues until the affairs of the partnership are finished up, partnership property is liquidated, all creditors and obligations are satisfied, and all remaining assets are distributed among the partners. Legally, a NJ partnership dissolution terminates the authority of each partner to act for his co-partners, except as it is necessary to wind up partnership affairs or to complete the transactions of the partnership.
In a NJ partnership dissolution, the distribution of partnership assets (unless otherwise provided for in the original partnership agreement) must first be made to creditors in the order of their priority, then to partners for loan(s) advanced for capital contributions and, finally, profits, if any to the individual partners.
If the assets are insufficient to satisfy creditors, the partners must personally contribute their proportionate share to satisfy creditor claims or they remain jointly and severally liable to pay the debts of the partnership.
Only when all of the debts of the partnership have been satisfied can the business of the NJ partnership be deemed legally terminated.
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