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Intellectual Property In A Divorce – Who Owns It?


Splitting up assets in a complex financial divorce includes considering everything owed by each spouse, including intellectual property. Who owns this kind of property? Which spouse ends up keeping the rights to it? Do both end up getting some of the profits brought about by the intellectual property?

At Buckhead Family Law, we know that instead of a tangible, physical asset, intellectual property isn’t something that can be held in a hand, making it tougher to divide, but it can be done.

What Is Intellectual Property

Before the decision can be made to divide or choose who gets to keep the intellectual property, it needs to be defined. Intellectual property can consist of:

  • Trademarks and Copyrights
  • Trade Secrets
  • Software
  • Patents

Inventors, business owners, and more can own the intellectual property rights to the software and other things that their companies use every day. In addition, things like an author’s pen name can also count as intellectual property, making it tricky to determine whether or not both spouses are owed any of the proceeds brought about by these intangible assets.

Does the Spouse Truly Own the Intellectual Property?

In some cases, things like trademarks and trade secrets are actually owned by the company, not the person who invented them. This means that the spouse who works for or started the business may not have the full rights to the intellectual property, making it tough for their spouse to claim half of the rights to it for themselves during a high-asset divorce. This requires a very specific analysis and possible valuation of the business interest.

Examining the Documents

Before the intellectual property can be included in the asset split during a divorce, some research needs to be done. The lawyers involved not only will look at who owns the intellectual property, but also when the rights to it were made official.

For example, a trademark owned by one spouse that was obtained during the marriage might be something that the other spouse can claim during the divorce. However, if the trademark was approved prior to the marriage, it may be separate property that may be excluded from the equitable division of assets.

Photo by Carlos Muza on Unsplash

 What’s the Value of Intellectual Property?

The key to dividing assets in a complex financial divorce lies in determining the value of any assets, including intellectual property. Although this type of property is intangible, this doesn’t mean that it doesn’t have any monetary value.

In order to determine if the intellectual property made money for the spouse who has ownership, a number of detailed financial records need to be examined. This includes records for any companies owned by the spouse that use the intellectual property.

On top of finding out how much the intellectual property made in the past, a future valuation may be considered by the court. If the copyright or trademark will make a certain amount of money in the future, then that may be included in any high-asset divorce settlement.

When the Court Disregards Intellectual Property

Despite all of this, there may be times when the court chooses to disregard intellectual property. The facts are what matter here. If the trademark or patent is owned and has been for many years, but hasn’t made any money and may not in the future, then the course may decide not to include it in the division of assets. The court tends to favor the split of intellectual property assets when it has a history of being profitable.

Looking For a Top-Rated Divorce Lawyer in Georgia?

Want to potentially include intellectual property in your divorce settlement? Need to determine who owns a trademark or copyright and whether or not the spouse who owns them profited from the intellectual property during the marriage?  Finding a knowledgeable divorce lawyer in Georgia who can help you sort through all of these records in order to reach an agreement and settle the division of assets is the key to ending things on a fair note.

At Buckhead Family Law, our legal team works diligently to meet the needs of clients getting divorced in today’s tech driven world – this means taking everything online into consideration. One thing that hasn’t changed about divorce? It is still one of the most harrowing experiences someone can go through, and we understand that. That is why we always treat our clients with grace and compassion.

Need help? We are here to assist you as you begin the next chapter of your life while ensuring that all of the loose ends are tied up in the least complicated way. Schedule a consultation today by calling at 470-600-6699.


Photo by Immanuel Noah on Unsplash

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