February 25, 2025

You’ve poured your heart into building something unique—an idea, a brand, or a creation that’s deeply personal to you. Now, as you navigate a divorce, the question arises: what happens to that intellectual property you’ve worked so hard to create?

Unlike dividing up bank accounts or physical property, intellectual property doesn’t come with clear-cut rules. It’s not just about the monetary value—it’s about preserving the work and vision you’ve poured into it. That’s why protecting it during the divorce process requires extra care and thought.

Defining what’s yours, assigning a fair value, and ensuring it remains protected may feel daunting, but you don’t have to figure it out alone. With the right legal guidance, you can make sure your intellectual property stays secure and that the asset division is handled fairly—so you can move forward with confidence.

What is Considered Intellectual Property?

There are four types of intellectual property: patents, trademarks, copyrights, and trade secrets.

• Patents

Patents protect the rights of an inventor, usually a new product, technology, or chemical formula. After the development of the invention, the creator will file a patent application with the U.S. Patent Office.

• Trademarks

Trademarks are there to protect anything that identifies the source of a product or service. A trademark determines where a product comes from. Companies put value in their trademark, as most consumers will make a judgment on a product or service based on the identifying trademark, which is typically a name, logo, packaging, or specific product.

• Copyrights

A copyright protects the rights of an author or artist for their original creative work, such as a recording, music, movie, visual work, literary work, or source code.

• Trade Secrets

If the public does not have access to certain information, such as a data process, customer list, or recipe, that information can be considered a trade secret. This kind of information cannot be protected by a patent or copyright, but is still considered intellectual property.

How is Intellectual Property Valued?

Before any property can be divided in a divorce, value must be determined. Patents, trademarks, copyrights, and trade secrets can be worth a significant amount, not only at the time of the divorce, but in the future as well. In the case of a divorce where the IP could be considered marital property, a divorce attorney will use their network of experts, such as appraisers or forensic accountants, to evaluate the IP and determine a fair market value. Typically the value will be determined by how much the IP has already earned, how much additional income it could generate, and how the value of the IP has influenced the couple’s financial situation.

How is Intellectual Property Divided in a Divorce?

In Ohio, marital property is divided using equitable distribution. Separate property is anything owned or created by one spouse before the marriage, which is typically easy to prove by the dates of filing. Anything owned by both spouses or acquired by one spouse during the marriage is considered marital property. When it comes to intellectual property, ownership can be complicated, as the IP is usually owned by a business rather than an individual.

If the business is a family business, the value of the IP will be divided in the divorce along with other business assets, but if the IP has been assigned to an outside business, it won’t be considered during asset division. If the IP is essential to the success of a business, it will likely not be divided during the divorce process, as most judges don’t like to break up a business.

Equitable distribution of marital property divides the estate fairly, but not necessarily evenly. If an asset can not be easily split, a judge will determine another way to divide the property, which usually results in one spouse retaining ownership of something, such as intellectual property, and the other getting an equivalent asset. In cases where the divorce is amicable and cooperation is possible, the judge may allow both spouses to co-own the IP, allowing them to both benefit from future earnings.

Can Intellectual Property Be Protected?

The first strategy to safeguard your intellectual property during the divorce process is to have a prenuptial agreement that specifically addresses intellectual property and provides evidence of your ownership of the IP. This will almost certainly protect any IP that was created before the marriage, even if both spouses benefitted from the IP during the marriage.

However, even with a prenuptial agreement, this may be more complicated when the IP was created during the marriage, particularly if one spouse supported the other during the creative process and contributed, even tangentially, to the success of the IP. Therefore, an even more important strategy is to have an experienced high-asset divorce lawyer who has worked with clients concerned with similar non-tangible assets.

Intellectual property can be protected while still ensuring asset division is fair, but it does add a level of complexity to the process that requires an attorney who is experienced in handling similar cases. When you are looking for an attorney for your high-asset divorce, look for someone who not only understands the intricacies of your unique situation, but can demonstrate a proven track record of handling cases like yours. If you’re filing for divorce, or recently found out your spouse wants a divorce, I can help you. Contact my office today.