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New York divorce law consistently seeks to keep up with social and technological changes that affect modern life. The laws regarding intellectual property (IP) are one such example. Intellectual property includes a variety of assets, including trademarks, copyright, and trade secrets.
If you are facing a divorce in New York, it is crucial to understand the basics of the state’s laws relating to intellectual property rights in divorce settlements.
Intellectual Property and Divorce
Intellectual property (IP) may be intangible assets you can’t spend or enjoy, but they are often the most valuable assets an individual can own. Dividing intellectual property during a divorce is a complex problem that often leads to contention.
The value of intellectual property must be examined before it can be divided. For example, a published novel could produce a long-term stream of revenue for both spouses even though the book was written by a single spouse.
If the non-writing spouse offered any contribution to the book, including providing the financial support that allowed the book to be written, then they may be able to claim at least partial ownership of its value. It may be necessary for a judge to consider the ownership arguments of each spouse and decide on a fair split of ownership.
Protecting Your Intellectual Property
If you are considering or in the process of a divorce, there are several steps you can take to protect your rights.
Documentation
You will want to start by documenting ownership clearly. Include specifics about parts of the IP that may have been contributed by someone else, including dates of the contribution.
Your lawyer can then create non-disclosure agreements to prevent the sharing of sensitive information during or after divorce proceedings. Creating official documents that declare the main manager and/or creator of the IP is also key, as is clearly documenting any and all information regarding how a spouse helped the IP grow.
Storage and Appraisal
Additionally, proper storage of your IP documents is an important way of protecting them, especially during a contentious divorce. Use secure file-sharing programs and make sure all documents are password-protected. Backup documents regularly and keep current hard copies in a safe deposit box.
You may also consider having your IPs independently appraised. An appraisal will provide a truthful assessment of value that will lay a solid foundation for negotiating licenses and transfers that may become necessary in the future. Appraisal can be helpful in many potential litigation scenarios.
Timing
In the case of a jointly created IP, such as a co-written book, agreements on division should be completed before moving forward with divorce proceedings. If agreements are not established, it will be left up to the court to decide how IP assets are divided. This can lead to unfair outcomes.
How Commingling of Property May Apply
When separate properties are mixed with marital properties, it is referred to as “commingling.” Commingling can make property division even more complex.
An individual may begin writing a book long before they become a spouse and then complete the work after several years of marriage. Along the way to completion, the writer’s spouse may read, make suggestions, or do small research tasks to help with the project.
The intellectual property may have started out belonging to a single person — the writer — but the efforts of the writer’s spouse cannot be overlooked. In this case, untangling the commingled property may involve profit sharing, joint ownership, or one spouse buying the other out.
An Experienced Divorce Attorney Can Help
Negotiating the fair disbursement of IP assets is complex in New York. The experienced team at Aiello & DiFalco LLP can help you protect your IP and work to ensure your assets are divided fairly, no matter how complicated the case may be. Contact us to schedule a consultation with a seasoned family law attorney in Garden City today.