Largely, the same thing that would happen to any piece of property: it would undergo the rigors of asset division. There are several factors that will determine how the intellectual property (IP) will weather the process, but intellectual property is still property and subject to the law. And in Washington State, that means community property.
So, let’s look into the challenges of IP division for divorce:
Physical division is impossible, so it comes down to money.
There are two possible options for an asset that cannot be divided physically, such as a home or a vehicle: liquidation or shared use. Now, liquidating an intellectual property, such as software or a patent, is somewhat straightforward: you would sell the rights to some interested party.
The other side of intellectual property is art. If you’re a creative who makes money off of – for example – an ongoing comic strip, your intellectual property may not be as saleable. You may not be willing to sell it. So, in that case, a portion of the money you make from that may go to your spouse.
Valuation
Even selling a piece of intellectual property for the purpose of liquidation is extremely challenging. As an intangible asset, there is no simple method to place a regular dollar amount on the IP. A patent for a product could be highly profitable with the right marketing behind it. However, without that it may go unappreciated.
It is not as simple to value as what the market dictates today. Any liquidation may have to account for future values as well.
Contributions
One fact about community property law in Washington is that if you owned property prior to your marriage, it is not community property. If you had that comic strip above before you married, then it is safe, right?
Maybe. Maybe not.
In a marriage, people contribute to each other’s endeavors by making room for them to focus on their creative works or becoming inspiration for them. If your ex can claim that they helped contribute to your work, a small part of the IP may, in fact, be subject to community property rules.
Finding the way forward for IP in divorce is not easy.
But you don’t have to do it alone.