Should Couples Get Prenups for Their Ideas?
The number of 18- to 35-year-olds seeking prenups is on the rise nationwide, but many millennials are more interested in protecting intellectual property — such as films, songs, software and even apps that haven’t been built yet — than cash. What does this shift mean for marriage and divorce?
* seek = 청하다, 구하다/ prenup(= prenuptial agreement) = (이혼 시 재산 분할에 대한) 혼전 합의서/ on the rise = 증가하고 있는/ millennials = (1980년대에서 2000년대 사이에 태어난 세대.) 1980년대에서 2000년대 사이에 태어난 세대/ intellectual property = 지적 재산/ shift = (위치・입장・방향의) 변화
현찰보다 지적 재산을 지키는데 더 관심이 있는 밀레니얼 세대의 변화는 결혼과 이혼에 어떤 뜻이 있나요?
1. Intellectual Property Could Be Hard to Divide in Divorce
Women have, historically, been short-changed in divorces. We see a similar pattern emerge in prenups for intellectual property.
2. Guarding Intellectual Property in Prenups Is Not New
I once represented a Nobel Prize winner whose spouse argued that she should share in the value of the copyrights
for writing he published during their marriage.
Sample Essay
Guarding Intellectual Property in Prenups Is Not New
Intellectual property — including music, art, literary works, films, scientific and medical developments, technology — is normally protected against third parties by copyrights, trademarks, patents and trade secrets. But among couples, a need has developed to protect “ideas” conceived by either a bride or groom who see him or herself as the next Mark Zuckerberg. In the event of a divorce, these couples want protection for what may be each person’s most valuable asset – the product of their intellect or invention.
In the world of divorce law, where I ply my trade, this is not a new concept. More than a decade ago, I represented a Nobel Prize winner who may have been the most prolific author of writings in his discipline. His spouse argued that she should share in the value of the copyrights for works he published during their marriage. He argued, however, that those works were an extension of his premarital separate property because a major component of each work was based on thinking and research that he had done well before the marriage — not to mention, over a lifetime spent in his chosen field of expertise. In effect, this was his separate property because it was merely an extension of his life’s training and endeavors from the cradle until the moment of their marriage and beyond.
The rationale for this argument is that every person is possessed of “human capital” — that each person is the product of such variable factors as genetics, intellectual and physical development, experience, innate abilities and talents, along with education, hard work, fortune, happenstance and mentoring. A well-crafted prenuptial agreement would have provided my client with protection for his writings as they were the products of his mind. They were his intellectual property.
A prenuptial agreement could have carved out the monetary value of his copyrighted materials and protected that value from the claims of his bride. Alas, having trusted her to not claim that which should have been solely his, he proceeded down the aisle without a prenup and spent tens of thousands of dollars on a divorce. It was resolved by a settlement that required him to share a portion of his royalties with her for many years to come.
