Intellectual Property in Divorce

One of the most contested issues in many divorces is which spouse bears the right to certain property and how jointly owned property should be divided. While it is often easy to assess the value of tangible property and determine how it should be divided, when intangible assets such as intellectual property are at issue in a divorce, disputes may arise over their value and ownership rights. If you or your spouse have intellectual property assets, it is wise to seek legal counsel regarding whether such assets may be divided in a marital dissolution. The Dallas divorce lawyers of McClure Law Group have the knowledge and experience needed to help you protect your rights, and we will work diligently to help you seek a successful result.

Intellectual property is intangible property, such as an invention, idea, or method, that arises out of someone’s creative process or intellect, and the right to use or profit from such property. Generally, intellectual property falls into one of four categories: copyrights, patents, trademarks, and trade secrets. Artists, writers, scientists, architects, and engineers are more likely to possess intellectual property rights than people engaged in other professions.

Whether intellectual property rights belong to one or both spouses frequently depends on when the property was created or obtained. In other words, if either spouse develops or acquires intellectual property after the marriage but prior to the divorce, the property is most likely considered community property, unless it is contractually precluded from being assessed as community property or falls under another exception. Any income generated by intellectual property during a marriage will likely be considered community property as well. Intellectual property created prior to the marriage, however, will most likely be considered separate property.

In Texas, all community property is subject to division in a divorce. Community property will not necessarily be divided equally, but will be divided in a manner the court deems just and right. Separate property, however, will remain the sole property of the spouse to whom it belongs.

If intellectual property is deemed to be community property, the value of the property must then be determined so that it may be divided between the parties, and a knowledgeable divorce attorney can help. Determining the true value of intellectual property can be difficult, however, as in many cases, the value is speculative. It is important to strive to obtain an accurate assessment, though, as intellectual property can be extremely valuable. Initially, the parties should identify whether any other party has a claim to the property, whether the property rights will expire (and if so, when), whether royalties are being paid for the use of the property, and whether additional funds will be needed to maximize the potential value of the property.

Numerous approaches can then be used to assess the value of intellectual property in a divorce. For example, parties may argue that intellectual property is worth its fair market value, the value of the income it produces or will produce in the future, or the value to the owner of the property. Once the parties agree on the value of the property and a court determines how the value should be divided, the spouse responsible for creating or obtaining the intellectual property will likely argue that he or she should retain creative control over the property following the divorce.

Obtaining an accurate assessment of the value of any tangible or intangible property is essential to obtaining a fair division of complex assets in a divorce. If you or your spouse own intellectual property, it is important to speak with an attorney regarding whether you have a right to the value of such property in a divorce. At McClure Law Group, we will aggressively advocate to help you pursue a result you believe is fair. We represent people seeking a divorce in Dallas, Richardson, Fort Worth, Garland, Irving, Rockwall, McKinney, and Frisco. We also assist parties in family law matters throughout Dallas, Denton, Grayson, Rockwall, Collin, and Tarrant Counties. You can contact us at 214.692.8200 or via the form online to set up a conference.