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Property division when one spouse is an artist

The inventory for property division during divorce may include a variety of personal items dearer to one spouse than the other. This may be especially true if these items are artwork created by one of the spouses.

It may seem as if these pieces should belong to the person who created them. However, just as earnings, investments, retirement accounts, insurance policies or a business become marital property when a spouse acquires them during the marriage, so does artwork. As soon as a spouse creates it, it becomes the joint property of both spouses. Therefore, the artwork is subject to division based on community property law, which involves equal rather than equitable division.

Valuation

Determining the monetary value of each art piece is a critical step in the process. Without a dollar amount, equal division is not possible. Spouses want to find an appraiser who is an expert in that medium, if possible. The goal is to determine the fair market value, which typically involves the correct identification of the piece, assessment of its condition and whether people are likely to find it desirable.

Next, the appraiser needs to analyze markets where the artist could sell the piece and figure out what the piece is likely to sell for. Which market the appraiser ultimately uses can make a huge difference in the value of the object. For example, if the appraiser provides a dollar amount based on how much the piece may bring in at a famous auction house, that is likely to be significantly higher than the price a wholesaler may get for the piece.

Negotiation

In many cases, artists feel emotionally attached to their work and may be ready to give up almost anything else to keep it. It is a good idea to figure out ahead of time what assets the artist is willing to trade for the artwork. Having a dollar amount and a plan for negotiation may help keep emotion out of the discussion so the property division phase moves along smoothly.

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