Intellectual property and divorce

Intellectual property refers to creations of the mind.  It can be inventions, writings, paintings, designs, symbols, images used in commerce, or artistic works.  Intellectual property establishes exclusive property rights to the creator, allowing them to control the benefit from their work.   It is protected from unauthorized duplication through a patent, copyright, trademark, or trade secrets for a period of time. 

A good example is Micky Mouse.  For decades, the Walt Disney Corporation maintained a patent for the image of Micky Mouse.  Only Walt Disney or those with Walt Disney’s permission could use this image for profit.  This patent expired and the image of Micky Mouse can now be used for profit without Walt Disney’s authorization.

When determining if intellectual property may be divided in a Colorado divorce, the first question is to determine if there is a property interest.  In divorce law in Colorado, property interest is defined very broadly and may include anything of value.  An exception, as it relates to intellectual property, would be property interests that are speculative or reliant on the happening of an event that may or may not occur in the future.  If the creation is in its infancy or still conceptual, it would most likely not be considered a property interest in a divorce in Colorado.

If the intellectual property is a property interest, then it must be valued and allocated to either or both spouses in a portion that is fair and equitable.  Colorado is an equitable division state, meaning that property is divided in a manner that is fair and just, not necessarily equally.

A few examples would be royalties.  If you or your spouse write a book that is published during the marriage, there may be a royalty provided to you for each book sold.  This would be intellectual property and would be subject to a division during a divorce proceeding.

Another example may be if you or your spouse develop a specific product that is unique, and a patent is issued.  The patent would have a value that may be divisible during a divorce.

When obtaining a copyright, patent, trademark, or trade secret, we recommend working with an experienced IP attorney and consulting with a family law attorney to determine the impact such action may have on a martial estate upon a divorce or death.