During divorce, couples may struggle to value their contributions after taking them for granted for so long. Enter prenuptial agreements, typically used as a financial contingency plan. But what happens when contributions aren’t strictly financial? This New York Times article discusses how prenuptial agreements are increasingly being used by millennials as a way of accounting for intellectual as well as financial property.

One of the major issues that can arise with intellectual property is when one partner makes a sacrifice to bear the risk of another partner’s venture (common when one partner invests time and energy in a startup and the other gets an unfulfilling job to pay the bills). Another issue is the difficult task of valuing success: a partner who has published a successful book may have spent time writing during the marriage, but may have been taking notes or planning the project for years before marriage. If these issues aren’t clearly discussed, contention can break out during divorce. One partner may claim that the financial rewards of the project constitute marital property, whereas the other may argue that the seeds were sown and the groundwork laid before the marriage took place.

At Boileau Conflict Solutions our mediation services are informed by mathematical and psychological principles: fair division mathematics, game theory and more. Game theory is an excellent tool for understanding the interests of all stakeholders and the value they bring to cooperative arrangements, as well as the reasons why conflicts of interest may take place. Whether you are drafting a prenuptial agreement or seeking divorce mediation to dissolve your marriage and split your assets, coming to terms with the value of your assets (including intellectual property) is critical. Valuation is a big part of divorce mediation, with the end goal of finding win-win solutions that are fair, smart and responsible.

Mediation may also be the most appropriate route for intellectual property division. This is because mediation is strictly confidential, meaning that critical information about your venture or creative project is protected. Patents, trademarks, copyrights and trade secrets protect ideas. However often in divorces, especially among younger people, ideas are in a germinal phase and not yet protected by copyrights or patents. As the New York Times points out, digital natives, of all people, understand the value of ‘ideas’ and the need to protect them. Please contact Boileau Conflict Solutions today to see how we can help you work out a fair intellectual property agreement during divorce mediation or when drafting a prenuptial or marital agreement.

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