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Do Couples Need Prenups for Their Ideas?

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By William Vogeler, Esq. on December 23, 2016 11:07 AM

In a survey of 1,600 lawyers by the American Academy of Matrimonial Lawyers, more than half of the respondents saw an increase in millennials requesting prenups. Instead of focusing on alimony and inherited cash, millennials want to protect intellectual property such as software, apps and technologies that are only ideas.

"Millennials are getting older and richer," Randall Kessler, a family lawyer, told Bloomberg BNA. "Prenups used to be for old money, but now prenups do different things, like safeguarding intangible property."

New Ideas in an Old Battle

When drafting prenups, lawyers must be sensitive to incorporating new ideas, but must also deal with old problems. For example, Orly Lobel writes for the New York Times that women have, historically, been short-changed in divorces. She said there is a similar pattern emerging in prenups for intellectual property.

Consider a case where the wife holds a steady job while the husband spends his time developing an app. According to Lobel, "They share the risk now, but if they divorce, the husband reaps the rewards of his intellectual property, and the prenup ensures his ex-wife gets nothing."

Protecting "Human Capital"

Alton Abramowitz, also writing for the New York Times, said millennials' prenups are not so different from others. The concern is about how to protect intellectual property, which for others might be literary works, films, songs, or screenplays.

He said he once represented a Nobel laureate who spent his lifetime researching and working in a particular field of study before his marriage. He went on to write about his work during the marriage, and later had to pay part of his royalties to his ex-wife in a divorce. Abramowitz said he should have had a prenup for his intellectual property that traced back to his pre-marital investment in "human capital."

Human capital encompasses a person's "genetics, intellectual and physical development, experience, innate abilities and talents, along with education, hard work, fortune, happenstance and mentoring." A well-drafted prenup always takes this into consideration.

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