Dividing Intellectual Property in an Illinois Divorce

 Posted on November 20, 2015 in Divorce

During a divorce most people think about how things like the cars, real estate, and retirement accounts will be divided between the spouses. But, as our society becomes increasingly information driven, another major category of property to be split is intellectual property. This can include everything from copyrights and trademarks to patents and trade secrets.

When Is Intellectual Property Considered Marital Property?

Illinois law has a broad scope of what is considered marital property. The presumption is that all property acquired during the marriage, that was not an individual gift or inheritance, is marital property. This includes typical types of personal property and real estate as well as intellectual property.

If one spouse writes a book during the marriage, the copyright on that book is presumed to be marital property. There are exceptions to this rule and ways to rebut the presumption. However, the starting position of the court is that even intellectual property created or acquired during the marriage is marital property.

How Can Intellectual Property Be Divided?

Illinois requires that marital property be split equitably. This does not mean that everything is split in half. Instead, it means that the marital property must be divided fairly under all of the circumstances.

Courts look at the following factors when deciding how to divide marital property:

• The contributions of the spouses to the acquisition of marital property, including contributions as a homemaker
• Any misuse of marital property by either spouse
• The duration of the marriage
• The value assigned to each spouse’s share
• Any economic windfalls or hardships
• Child custody arrangements
• Health and age of the spouses
• Tax consequences
• Ability of each spouse to acquire assets and earn income in the future
• Any spousal maintenance awards

Intellectual property also falls under this analysis. For practical purposes when one spouse is the sole creator of the intellectual property, such as with a book, the courts often give the creator the copyright, but may award a higher amount of spousal maintenance or give the non-creator spouse more tangible assets.

If the property is not worth much now, the court will have to consider what it is worth in the future. If both spouses jointly created the intellectual property, one side may be awarded the property right and ordered to pay a percentage of royalties to the other spouse on an ongoing basis.

Every case is different and the property division also depends on the valuation of the intellectual property.

If you have any questions about intellectual property during a divorce, or any other property division questions, you need to speak with an experienced and knowledgeable Arlington Heights divorce lawyer. Call today to schedule a consultation with A. Traub & Associates. We look forward to working with you.

Source:

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000050HPt%2E+V&ActID=2086&ChapterID=59&SeqStart=6100000&SeqEnd=8350000