No two marriages are the same, so it stands to reason that no two divorces are the same. The way property is divided in a divorce is mandated by the laws of the state in which the couple live.
However, some property does not easily fit into neat little boxes. How is it determined who “owns” finances after the divorce?
What if the intellectual property predates the marriage?
Can the spouse claim ownership due to their influence of their partners creativity while they were together?
Sometimes the lines of ownership of any kind of property are blurred. It takes the skills of a qualified attorney to define the division in a way that is fair to all parties. We are going to attempt to put this information in language that anyone can understand.
Please do not assume this covers all examples and exceptions, as that would not be possible. Please contact your attorney to discuss your individual case.
Generally speaking, anything that was received or purchased during the marriage belongs to both spouses.
This means if the property or funds were acquired while you were together and they were not individual gifts or inheritances, they belong equally to each spouse. There are exceptions to this rule.
These exceptions usually occur when a gift or money from property and accounts become commingled. Generally, when blended with marital funds, they become community property. If money or property were brought into the marriage and kept separate during the marriage, it is usually not community property.
Intellectual property refers to creations of the mind. Artist, writers, songwriters, designers and many other creative people create intellectual property. This is one of the most complicated of divorce divisions. In its simplest form, it breaks down this way:
If the work was done that created the intellectual property took place before the marriage, it is usual for it to remain the property of the creator. This remains true, even if the copyright is obtained shortly after the marriage took place.
The actual creation was prior marriage. However, if the effort was expended to create the intellectual property after the marriage took place, it is marital property and the interests in the property are owned equally by each spouse.
However, it is rarely that easy to determine ownership of intellectual property. Other considerations that the courts will weigh are:
- Were marital funds used to develop, market, and patent the property?
- Did each spouse put effort into the growth and/or promotion of the “product”?
- Is the intellectual property complete?
Even more confusion
There are times with the intellectual property is incomplete and as such, not earning money yet. If the item was designed prior to the marriage but has not yet been marketed, will the former spouse own any of the rights when the property is marketed?
What if a person has written a book, or produced a film during the marriage, which is successful and ruled to belong to each of the spouses, and they are in the process of producing the sequel? Will the spouse own any of the rights to the next book or film which will be marketed after the divorce? Where does the intellectual property ownership end?
These are just a few examples of the issues family law attorneys face every day, the state laws, courts, and prior factors have a huge impact on the outcomes of these situations, in any divorce, there are sensitive areas.
When it comes to the creative powers of a person, it becomes very personal. This is not something you can address alone. Contact your attorney for help.