FAQ: How are Intellectual Property Rights, Such as Patents and Copyrights, Divided in a Texas Divorce?

Q: What is intellectual property?

Intellectual property is an intangible asset. It does not have a physical form and are thoughts or ideas. The most common forms of intellectual property are patents, copyrights, trademarks, and trade secrets.

Q: Who retains the intellectual property rights after the divorce?

When the intellectual property was created is going to affect how it is addressed in a divorce. Texas is a community property jurisdiction. Any property acquired during the marriage is considered part of the community estate and is subject to a fair and equitable division. Any property owned prior to marriage, was gifted, or inherited is that spouse’s separate property and will not be divided—only confirmed as that spouse’s separate property. If the intellectual property is determined to be community property, then typically, the spouse with the ownership interest will retain the property after the divorce; however, the value of the intellectual property will affect the overall division of the community estate.

Additionally, any premarital agreement or contractual agreement with any company or employer may affect the ownership interest or ability to account for the value of the intellectual property in the divorce. For example, a spouse employee may have created the intellectual property, but per their employment agreement, the spouse’s employer maintains the ownership interest. A well-trained family attorney can assist in determining who actually owns the intellectual property.

Q: How do we determine the value of my intellectual property?

An expert in the form of an appraiser or business valuator will need to help determine the value of the asset. There are many ways to calculate the value of intellectual property. Additionally, the value of the asset may be the most continuous part of your divorce. This is why it is important to have an expert that a court can rely on in legally finding its value.

Intellectual property can be a valuable asset. It is important to have a legal team behind you that understands how to protect your interest and negotiate on your behalf.