It is common for a couple who divorces to have to go through property division, where their community property is allocated between the two spouses. This can be a complicated issue, but with people who are artists, it may be even more complex. The reason is that works of art created by just one of the spouses during their marriage are in most cases considered to be marital property.
This means that works of art, whether they are being shown in a gallery, in storage or just have not been sold may end up going to the creator’s spouse. This is similar to the way that a married couple both have rights to a copyright obtained by one of them during the marriage. Along with the fact that artwork is considered to be eligible for division, it cannot be sold or destroyed without the consent of a spouse before divorce proceedings come to an end.
Artists who are going through a divorce should create a complete list of all of their works and their location. From there, their value will have to be determined, which can be difficult, especially if a work is still in progress. Some couples may agree that a percentage of a future sale will be given to the spouse instead of trying to place a value on certain works. Alternatively, a spouse may give up monetary rights so they are not obligated to pay costs related to finishing a work.
People may be surprised just how much of what they considered to be their separately-owned belongings is actually community property that is eligible for division. Even intellectual property created by one of the parties may fall into this status. A family law attorney can explain to a client what goes into determining what type of property is to be divided during divorce proceedings.
Source: Huffington Post, “For Artists, Divorce Means Splitting Up the (Art) Assets”, Daniel Grant, March 3, 2015