Protecting Intellectual Property Rights During a Divorce Proceeding

When you decide that divorce is the right option for you, you have a lot of important decisions to make. For many couples, the division of assets is one of the most complicated aspects of their split. If one or both spouses own intellectual property, this part of divorce becomes even more complex. Compared to more tangible assets, intellectual property can be challenging to properly value. It’s important to discuss this aspect of your divorce with an attorney who understands its complexities.

If it’s time to take the first step and file for divorce, the team at Olmstead & Olmstead is here to help you. Call us at 703-260-8752 to set up a consultation now.

Identifying Your Intellectual Property

As you prepare for the division of assets, we’ll spend some time identifying, listing, and valuing your intellectual property. IP is incredibly valuable in today’s world, covering inventions, artistic works, designs, symbols, and more. There are a number of ways that intellectual property is legally protected, and maintaining ownership of those protections is crucial during a divorce. Safeguarding your intellectual property during your split ensures that your creations and innovations are not lost.

Intellectual property is a term that covers a broad range of forms. Depending on your field and the length of your career, you may have patents for inventions, copyrights that protect your artistic work, trade secrets, and trademarks that safeguard your brand. This is considerably more involved than what most couples go through during a divorce, so it is essential to work with an attorney with specialized experience in this area.

Marital Property vs. Separate Property

Understanding the distinction between separate and marital property is helpful not just with your intellectual property, but all of your assets. In general, marital property refers to anything acquired or created during the marriage. This is true even if one party was not involved in the creation of the work or invention itself, as the law generally acknowledges the support and sacrifices they make for their partner’s work. Separate property is usually anything acquired before or after the marriage, although there are exceptions.

Your attorney will look at the specific facts of your case and help you understand whether or not your intellectual property is considered marital property. Consider, for example, something created prior to the marriage. The creator continued to develop it throughout the course of the marriage, turning it into a marital asset. In this case, the parties would likely have to negotiate how much the other party would be entitled to for what was created during the marriage.

How to Protect Your Intellectual Property Rights

There are numerous ways you may be able to maintain full ownership of your intellectual property. Discuss your priorities and concerns with your attorney so they can provide proper guidance. Possible options include:

• Prenuptial and postnuptial agreements: Obviously, these tools are best used before a marriage has reached the point of irretrievable breakdown. However, for those who are getting married or currently married, this may be an option. There are scenarios in which a partner may be willing to sign a postnuptial agreement—for example, if a spouse engages in infidelity or damages the couple’s finances, they may be willing to sign a postnuptial agreement that protects the other partner’s interests in exchange for a second chance.
• Proving separate ownership: If your IP was created prior to your marriage, you may be able to get it counted as a separate asset during your divorce. This completely excludes it from the division of assets.
• NDAs: If you are worried about your spouse utilizing your trade secrets or IP improperly, you may be able to protect your creations with NDAs or restrictive covenants.
• Licensing agreements: If your spouse’s primary concern is benefiting from the residual income of your property, you may be able to negotiate with them via licensing or royalty agreements. These agreements allow you to maintain ownership while offering licensing rights to the other party.
• Negotiation using other assets: If there are other marital assets to be divided, you may be able to give up other property in exchange for full ownership of your IP.

Explore Your Divorce Options with Olmstead & Olmstead

Don’t let worries about your divorce keep you up at night. Discuss your concerns with the team at Olmstead & Olmstead so we can help you find solutions. Call us at 703-260-8752 or reach out online to set up a consultation.