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Property division in divorce: What about the art?

Getting a divorce is a complicated process. In addition to filing the paperwork to initiate the divorce proceeding, the couple must go through negotiations on property division and, if children are present, navigate issues involving child support and child custody.

Even when children aren't present, the process can get complicated quickly. Asset division in itself is a complicated process. After all, not all pieces of property can be totaled up and split in half.

How difficult is it to divide property during divorce? In some cases, splitting property can be easy. A savings account and investment portfolios can be split roughly in half, the value of a home or business can be estimated and accounted for. But what happens when the asset at issue is a piece of fine art?

Art can be a bit more complicated. This is especially true if the artwork in question was created by a spouse.

This can cause for some contentious debates. After all, as noted in a recent piece in the Huffington Post, artist rarely see their work as property. The courts do not agree. Instead, artwork is viewed as marital property. As such, it is part of the asset division determination proceeding.

There are some exceptions. Anything completed or purchased prior to the marriage is generally exempt.

How do you split art? Clearly the work cannot be physically split. Art needs to be valued before a split can be determined. Instead of splitting the artwork, the value will be shifted around with other assets to come up with a fair split.

The valuation is generally completed by a neutral third party, ideally one agreed upon by both spouses.

What about performance art? Actors, dancers and the like are also creating art. This art can also be subject to division. If, for example, the artist has produced films the ex-spouse may negotiate a portion of the royalties as part of the settlement agreement.

Determining the best way to split art during the property division portion of the divorce is difficult, and will vary with each unique divorce. As a result, it is wise for those in these situations to seek legal counsel to better ensure their interests are protected.

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