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How to Deal with the Distribution of Intellectual Property Assets in Divorce

By Judith L. Poller and Elizabeth Warner

Relationships are challenging. Add to the mix the dynamic of a spouse who is creative (the “Creative Spouse”), and must rely in large part on his or her spouse to provide both financial and personal support (the “Supporting Spouse”) for a dream to be realized. The passage of time with no success may lead to heightened tensions as the Supporting Spouse demands that the Creative Spouse wake up and share the burdens of financial responsibility. This financial tension may ultimately lead to a divorce.

While it may be relatively clear-cut to determine the value of real property, financial accounts and even a professional practice, when a Supporting Spouse and a Creative Spouse divorce, the question may arise as to how to distribute the value of the intellectual property or “celebrity status” that the Creative Spouse created during the marriage (the “Creative Asset”). Some Creative Assets may already have a market-defined value at the time of commencement, while some may only have an expectancy of value. This article considers what rights, if any, a Supporting Spouse may have in the value of a Creative Asset.

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