California seems to attract a lot of artists—and artists often tend to congregate together, so it isn’t surprising that some of them should end up married to each other.
Unfortunately, not all those marriages last. When they do fall apart, one of the things that may surprise one or both spouses is that they don’t each own the exclusive rights to the art they’ve produced. Instead, that art—any of it produced during the marriage, anyhow—is actually considered community property and part of the marital assets under California’s laws.
Not only can this come as an emotional shock for some of the people involved, it can come as a financial shock as well, particularly if one spouse’s artwork is more of a commercial success than the other spouse’s work. California courts have even extended the idea of art as community property to include the copyright on an item.
A lot of times, an artist’s unsold work or collections that are being gathered in anticipation of a major showing are simply sitting around a studio or taking up space in storage. Some of it may be hanging on the family walls.
It’s very important that artists who are divorcing (whether they are divorcing another artist or a non-artist) recognize that they likely have to include some of their creations in the list of marital assets. That means taking a careful inventory of everything they have created that is in their possession or on loan somewhere in order to avoid accusations of failure to disclose. Leaving a piece of art or two off an inventory list can result in an automatic award of that property to the other spouse if the judge believes it was done deliberately.
If some of the art was created before the marriage, it’s going to be essential to track down any documentation you have showing when the item was finished. Letters to a dealer, appraiser or gallery owner might help establish the date of creation of the piece.
Ultimately, the work that is created within the marriage has to be divided in a way that gives each spouse an even share of the works’ value. That doesn’t necessarily mean turning over half of your creations, however—although it might mean agreeing to pay your spouse half of their appraised value now or half of their actual value once they are finally sold.
Source: FindLaw, “California Community Property Laws,” accessed Jan. 05, 2017