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What happens when the author gets divorced?


If you’re married, divorce hopefully won’t be a big deal for you, but it doesn’t hurt to know what could happen just in case. Most people know how assets are usually divided, but for writers it can be more than just who gets the house and who gets the savings bonds. At stake are not only past and future royalties for your books, but even intellectual rights to elements of any ongoing series. Ginger talks about some of the things you might face if you ever find yourself in this situation, and what your options are, but obviously shouldn’t be taken as official legal advice. However, hopefully you’ll never have to worry about it!

Ernest Hemingway was married four times. JK Rowling and Jackie Collins were married twice. Whether there’s any statistical truth to this or not, writers in general have a reputation for being wildly romantic, falling in and out of love too easily, and bestseller lists are filled with authors who have survived one, two, or sometimes more divorces.

And when it comes to divorcing authors, it’s not just their reputation that’s at stake. Many writers don’t know that any books written and published during a marriage are considered joint property – and writers can lose their rights to their own intellectual property during a divorce!

This means more than just losing a percentage of future royalties from their printed books. In some cases, authors whose books are later selected for film or television have to pay a percentage of their earnings to partners they divorced years ago.

In the case of 2015 Canisius v. Morgensternfor example, the courts awarded the ex-husband of author Erin Morgenstern a percentage of the royalties received for her best-selling book Night circus even though they divorced four years ago. This was in addition to the $570,000 settlement her husband received at the time of the divorce as “his share of royalties and earnings related to the book.” [that Mogenstern] received to date from publication [her] novel”.

This can also apply to written books after divorce – at least if some aspects of books written after the divorce include elements or characters from books written before the divorce. This means that authors who write a successful series of books may find themselves owing their ex-spouses a percentage of book royalties, even for books they have not yet written, while they are part of the same series.

This is because the ownership of the books (Intellectual Property Rights) is taken into account. assets by the judicial system – as in something that has material, monetary value. This makes sense, since authors usually write books with the intention of making money from them!

In most states, couples agree on property division after divorce, so everything they jointly own is inventoried, appraised, and reviewed during the process. The rule of thumb is that things each person owned before marriage remain theirs, and anything they acquired during the marriage is considered joint property. Obviously, this depends on a lot of different things, including prenuptial agreements, but that’s what usually happens in the process.

If the author writes a book during their marriage, the rights to that book are also considered joint property, as each partner is entitled to a 50/50 share. This means that the rights to the books themselves come up for negotiation during the divorce proceedings.

Many writers find this a disturbing reality when they learn about it. After all, it seems absurd that someone’s wife or husband can claim ownership of a book they had no part in writing, editing, publishing, or promoting. When I first learned about this, it seemed almost transgressive to think that my wife (who refuses to read my books and ridicules them for being “just” romance books) might later claim partial ownership of them if we ever divorced .

But it also happens! And there is legal precedent for that too. In the case I mentioned above, Canisius v. Morgensternthe controversial book just reached bestseller status after the couple separated, but the courts ruled that Morgenstern’s ex-husband was still entitled to his share of the royalties despite not participating in the expensive and time-consuming post-divorce marketing and book promotion tour that led to the book’s success.

So authors beware!

But for authors currently involved in potential divorce proceedings, don’t panic! Just because the rights to any books you wrote during your marriage are considered joint property, that doesn’t automatically mean your soon-to-be ex-spouse is automatically entitled to half of them.

When couples divorce, all joint property and assets are inventoried, but they are not necessarily divided equally. Each asset is valued and then couples can negotiate who owns what until they feel they have a fair balance.

For example, a shared home may be treated as $100,000 of equity. However, the only way to realize this equity is to sell the house. A couple might decide that one partner keeps the house outright (valued at $100,000 because it’s the equity left after the mortgage is paid off) while the other partner keeps $100,000 worth of stocks or bonds (which must also be sold for those money to be available.)

So it becomes almost like a game of poker – one partner keeps the house in the hope that it will accumulate in value, while the other keeps the stocks and shares in the hope of the same. The end result can be extremely unfair (there could be a housing market crash and a stock market boom, with one ending up being worth much more than the other), but the value of each asset should be equal at that time divorce.

And the rights to the books are exactly the same. For example, in the early 2000s, the rights to JK Rowling’s Harry Potter series could only be valued in the tens of thousands of dollars, so her first husband never claimed any rights to anything she wrote during their marriage. ended in 1993.

However, if a book is seen as potentially successful – like Erin Morgenstern’s book Night circus – it becomes a much more valuable marital asset, a share of which someone can fight much more fiercely.

So the first step for a married author to protect the rights to their published works is to get them evaluated. If books consistently make a significant amount of money, this “value” may be perceived as insignificant by lawyers and the like (even if they invaluable to the author!)

Couples can then write a formalized postnuptial agreement in which that agreed-upon value is exchanged for something of value — such as stocks, shares, or physical property. It doesn’t even have to be the same value – it just has to be some value, so there is an element of “consideration” (which is the legal definition of a binding contract.)

In a postnuptial agreement, for example, one partner may agree to give up all ownership rights to his or her spouse’s books in exchange for a nominal amount, such as $1. This is still “consideration” and is considered a binding agreement.

If they don’t divorce – good. But if they to dothis postnuptial agreement protects the author’s ownership rights, even though their books have since become wildly successful.

It’s a pretty cynical and depressing topic to think about, but one that writers should be aware of and consider. Many of us put our hearts and souls into our books, and this terrible to think that an opportunistic partner might try to claim any part of it. However, intellectual property rights are a real thing, and authors who do not protect their rights can lose them as a result. We warn you!

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Ginger is also known as Roland Hulme – a digital Don Draper with a Hemingway complex. Under the pseudonym, he has sold more than 65,000 copies of his romance novels and reached more than 320,000 readers through Kindle Unlimited – using his expertise in marketing, advertising and social media to reach an ever-expanding audience.

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