Spouses going through a Massachusetts divorce usually worry about howassets such as a house, car, or retirement accounts will be divided when the divorce is final. With information and technology becoming increasingly intertwined in evolving societal norms, however, intellectual property is equally becoming an important category of assets owned by a married couple. Intellectual property includes things such as copyrights, trademarks, and patents.
Is Intellectual Property Marital Property?
Massachusetts law defines marital property as property, including assets and debts, the divorcing couple acquired after getting married. There are a few exceptions, but this law is broad enough to include in it nearly all property that a couple acquires after marriage. Conversely, all property acquired prior to marriage is not considered marital property, except in certain special circumstances.
Whether intellectual property is marital property depends first, on whether it was acquired before or after marriage. If the intellectual property was acquired after marriage, then there is a presumption it is marital property. However, like all presumptions, a spouse who believes it the intellectual property is not marital property can present evidence to overcome the presumption.
Dividing Intellectual Property
If a determination is made that intellectual property is marital property, then the next issue to be determined is how to divide it between the couple. Ideally, as in all other cases, it would be better for the divorcing couple to reach an agreement as to how this and all other properties should be divided. However, it is also often the case a couple does not reach an agreement therefore the courts have to decide this for them.
Massachusetts is an “equitable distribution” state, which means who gets what part of the intellectual property will be determined by a judge based on what he or she deem to be fair. In doing so, however, a judge does not arbitrarily decide what is fair and equitable; rather, he or she must follow factors provided under Massachusetts law. These factors include the following:
- Contribution of each spouse to the acquisition of marital property;
- Misuse or hiding of assets by either spouse;
- How long the marriage lasted;
- Economic circumstances of each party;
- Obligations either spouse may have from a prior marriage;
- Prenuptial or postnuptial agreements between the couple;
- Custodial arrangements for any children;
- Potential for future income; and
- Tax considerations.
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