Is the income from intellectual property the joint property of husband and wife? How to divide the divorce?

1. Relevant provisions in the law: Article 17 of the Marriage Law stipulates: "The following property acquired by husband and wife during the marriage relationship shall be owned by both husband and wife: (1) salary and bonus; (2) Income from production and operation; (3) the benefits of intellectual property rights; (4) Inherited or donated property, except as provided for in Item 3 of Article 18 of this Law; (5) Other property that should be owned by * * *. " "Income from intellectual property rights" refers to the property income actually obtained or can be clearly obtained during the marriage relationship. During the marriage, one party cannot acquire intellectual property rights without the support of the other party. There is no doubt that the realized economic benefits should be divided according to the joint property of husband and wife, but whether the unrealized economic benefits at the time of divorce, the intellectual achievements completed before marriage and the economic benefits obtained after marriage can be regarded as the same property can not be generalized, and should be treated differently: (1) intellectual achievements (1). In this case, it is regarded as premarital property. Because once the works before marriage are published, they acquire the property right, which is a kind of vested property right. In fact, they are acquired after marriage, so the nature of the property is not affected. (2) the creation of intellectual achievements before marriage, such as an invention before marriage, was not transferred or put into the market for various reasons, but put into the market after marriage. In this case, it is generally believed that husband and wife should not be regarded as the same property in principle, but the economic benefits of intellectual property rights were obtained long after marriage, and the other party made efforts to obtain the economic benefits, which can be appropriately divided as appropriate. 1, the particularity of intellectual property rights determines that all possible ways should be fully considered in the division of intellectual property rights during divorce. (1) Consider splitting the split intellectual property at a discount. For example, trademarks, trade names and patents jointly owned by husband and wife can be evaluated or negotiated to determine the value first, and then the obligee, as the owner of intellectual property rights, will give the other party a certain discount; For copyright, if both parties reach an agreement through consultation, the material carrier of copyright can also be divided, so that both parties can share the risk of the rise and fall of intellectual property value. (2) The other party may exercise the right to claim property expectation. If the specific economic value of intellectual property rights cannot be determined at the time of divorce, it may not be divided temporarily at the time of divorce, but the other party has the right to claim the proceeds from the disposal of intellectual property rights. 2. In practice, there are two ways to solve this problem: (1) discount compensation. You can refer to the method of indivisibility in civil law and hire professionals to evaluate the expected benefits of this intellectual property. As the party enjoying intellectual property, the obligee will give the other party corresponding compensation. (2) temporarily. In the judgment, the property rights in intellectual property rights will be owned by both parties, and the other party's right to appeal will be reserved until the economic benefits are obtained in the future.