“Dividing a marital estate poses a multitude of challenges for the matrimonial practitioner. Some of the more discrete and greatly underestimated components of the martial estate are the assets often unseen: the intellectual property owned by the parties,” Judith Poller, Karen Robson, and Paul Fotovat wrote in their recent article for the American Journal of Family Law.

Because IP is unlike traditional tangible assets, such as businesses, real property, stocks and bonds, it is often difficult to recognize – even more so when it has not yet been exploited. When faced with dividing intellectual property assets in a divorce action, the authors advise practitioners to focus on three key objectives:

  1. Identifying the IP;
  2. Valuing or quantifying the IP; and
  3. Dividing the IP, although each jurisdiction will have its own method of determining how IP is distributed.

While the division will rarely be equal, parties can generally expect a determination to be based on the labor and post-dissolution efforts expended by the creator-spouse.