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What happens to intellectual property during a divorce?

| Apr 29, 2020 | Asset Division |

From photographs to letters, virtually everyone creates some type of intellectual property during a marriage. While some mementos are purely sentimental, other works may have significant financial value on the open market. If you are a scientist, artist, inventor or writer, you likely have a keen interest in what happens to your intellectual property during a divorce. 

In New York, judges divide marital wealth according to what is equitable. While this approach does not necessarily give you exactly half of the marital estate, it should leave you with a fair share. Still, when it comes to dividing intellectual property, you may have some obstacles to overcome. 

The valuation problem  

Intellectual property can be incredibly difficult to value. For example, you may have a patent for a device that has not gone into production. Alternatively, you may have written a novel with future royalty potential. Either way, you may need some professional assistance when determining the worth of your intellectual property. 

Marital vs. separate property 

Before you think about dividing the intellectual property you own, you must determine if it is marital or separate property. With some exceptions, marital property is the property you acquired during the marriage. Therefore, if you created your work during your marriage, it is likely part of the marital estate. 

A division strategy 

Dividing intellectual property that is part of the marital estate is not an exact science. Because they must be equitable, judges are likely to consider the contributions each spouse made to the creation of the intellectual property. Furthermore, judges may weigh whether post-divorce action is necessary for the intellectual property to generate income. If so, the contributing spouse may receive a larger share. 

Both you and your soon-to-be ex-spouse likely have a financial interest in your intellectual property. Therefore, it is a matter you must address during your divorce. By understanding the ins and outs of property division, you can better advocate for your fair share.