One of the first steps in a divorce is to identify the marital assets and how or if they are divisible. What many people may not consider when they think about their assets is intellectual property and its equitable division. Intellectual property rights are intangible, but they can be just as valuable as tangible property in some cases.
Intellectual property is the set of legal rights to an expressed idea. All great works of art, music, literature and technology began as thoughts and ideas; they eventually morphed into tangible media, which in many cases provided a lifetime of income to the creator.
Dividing a Couple’s Intellectual Property Interest
There are four types of intellectual property:
- Copyrights
- Trademarks
- Patents
- Contracts for royalties
Intellectual property rights can be easy to prove if the property is a patent, because patents have a paper trail. Copyrights, on the other hand, are difficult to prove, because no registration is required to create a copyright. You can have a copyright in a song or a book you wrote, a photograph you took or a painting you made without filing any official documents. These creations may hold only sentimental value, but the intellectual property interest is marital property and is divisible. You may create something during your marriage that has no value at the time but that becomes a huge moneymaker after the divorce; what is your ex-spouse’s interest in those proceeds?
When dividing interests in intellectual property rights, you should keep in mind the policies behind intellectual property and divorce law. Creative control should stay with the inventor spouse. This approach allows the inventor spouse to maximize the work’s income potential, thereby creating more income for support awards.
You can divide the value in the work created during marriage, but ideally, the court would exclude from division any value created before or after the marriage. You should be sensitive to the time and effort spent creating and marketing the work.
Divorcing spouses, and even their attorneys, may give little thought to intellectual property rights as marital assets. The rights are not always easy to recognize and sometimes even harder to value. Nonetheless, intellectual property is an issue worth examination in a divorce proceeding.
Contact a Houston property division lawyer if you have further questions about dividing intellectual property in a divorce action. An experienced Houston property division attorney can help with all phases of your divorce.
