When getting a divorce, some assets may seem simple to split, like the money in your bank account or two vehicles of equal value. However, as a creator or inventor, you may be shocked to find that your intellectual property is subject to division during your divorce. The following blog explores what you should know about how different forms of intellectual property are handled during divorce and how New Jersey equitable distribution attorneys can assist you during this process.
What Constitutes Intellectual Property?
Intellectual property is a creation of the brain and receives special protections under the law to prevent the ideas and works of others from being used without permission. The type of protection offered depends on the creation. The most common forms of intellectual property include:
- Copyright: Copyright protects creators of books, art, movies, plays, and other creative works from having their pieces replicated, copied, or distributed without their express permission.
- Trademark: When something is synonymous with a brand or business, such as a logo, icon, or short phrase, it can be trademarked to ensure other companies cannot use it to confuse consumers.
- Patents: A patent is a protection used by inventors to grant them exclusive rights to a process or product.
- Trade secrets: When a company has a specific way of doing something that is not available to the public, it is considered a trade secret. The most famous example is the recipe for Coca-Cola.
How Are These Works Handled During Divorce?
Because intellectual property is a non-tangible asset, dividing this asset can be challenging.
Generally, if you acquired a copyright before you were married, it will be deemed separate property. As such, it will not be divided when splitting assets. However, if you gained income from the asset over the course of your marriage, you may find that it has comingled with other assets, making it marital property.
If you obtained the copyright during the marriage, it is community or marital property and will be distributed according to New Jersey state law. In most instances, the courts will evaluate the circumstances surrounding the creation of intellectual property. If one spouse was the sole creator and worked on the project alone, the courts may deem it individual property. However, if their spouse took on more responsibilities so the creator could pursue their work, it would constitute a joint effort.
Is There Anything I Can Do to Protect My Property?
If you’re worried about what will happen to your intellectual property during a divorce, it’s essential to consult an experienced divorce lawyer as soon as possible.
If you are not currently married, you may want to consider creating a prenuptial agreement. This document allows you to take additional precautions to protect your property.
In the event you are married and going through a divorce, your attorney may be able to negotiate a buy-out offer, which compensates your spouse, allowing you to retain full ownership of the property and future earnings the work generates.
At Haber Silver Russoniello & Dunn, we understand how anxiety-inducing divorce can be. Not only do you have to worry about what will happen to your property, but you’re also enduring a very emotional time. As such, our team can help handle the legal complexities so you can focus on starting the next chapter of your life. Contact us today to learn how we will help you.