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Self-created art pieces may complicate property division process

Property division during a divorce is typically a challenging process for both spouses. Artists, however, have an added property division complication in determining who owns the art they created, along with future income from licensing and copyrights. Under California law, art objects created by one spouse are regarded as community property in a divorce -- as long as they was created after the date of the marriage.

Many artists do not realize that art pieces in storage or on consignment at art dealers or galleries, or even used as decoration in their homes, are not necessarily their own separate property. In addition to artworks created before the marriage date, pieces completed after a separation or divorce filing may be seen as personal property of the artist. Similarly, the proceeds from sales or licensing agreements reached prior to the date of marriage will typically be for the artist's sole benefit, regardless of whether the money was received immediately or during the marriage.

For the purposes of property division, a detailed inventory of artwork has to be created. This must include the dates when both sold and unsold pieces were completed and the sales dates of those art pieces that were sold. All unsold pieces must be appraised, and the values recorded. The situation may be even more complicated when the art pieces are sold to be reproduced, such as clay models. An agreement for a third-party to reproduce the model may produce hundreds or thousands of the article, and income from licensing or copyrights may be substantial.

Failure to identify all artworks or to disclose licensing agreements in the inventory may lead to future litigation. Discussing agreements related to the property division of art pieces may bring about contention, and an experienced divorce attorney may suggest the services of a mediator to guide couples through the negotiations. During this process, spouses may trade assets in various ways. One spouse may forfeit a substantial asset such as real property or a car in favor of his or her art pieces, or a spouse may give up his or her share of the art if the artist assumes responsibility for marital debts. Through communication and compromise aided by a California attorney and mediator, mutual agreements may be easier to reach.

Source: The Huffington Post, "For Artists, Divorce Means Splitting Up the (Art) Assets", Daniel Grant, March 3, 2015

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