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The Art of Divorce: Who Gets the Paintings and Who Gets the Sculptures?

Posted by Jonathan W. Lounsberry | Mar 01, 2018 | 0 Comments

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Photo Credit: Vincent Tantardini, Unsplash.com

When a couple separates, one of the most time-consuming processes is figuring out the division of the "marital" property - the property which was acquired by the couple during the course of their marriage, which they each (typically) have an equal right to own. It's usually pretty easy to sort out who gets the personal items such as clothes, jewelry, watches, books, and even some of the furniture since those items tend to be connected more to one spouse or the other.

However, what happens when there are collections which have been acquired jointly by the spouses, such as an art collection, which both spouses love and have spent considerable time, money, and effort collecting? Who gets the art in these circumstances?

Factors to be Considered:

The short (lawyer) answer is "it depends." There are several factors which must be examined to determine who will ultimately get to have permanent possession of the art in question. Some of those factors are: 

  • Is the piece of art something the spouses purchased during the marriage?
  • Is it a piece of art which was inherited by one spouse during the marriage?
  • Was it a piece of art that was purchased or inherited by one spouse before the marriage?
  • Was the piece of art purchased using money which was acquired by one spouse before the marriage?
  • Was the piece of art a gift from one spouse to the other?
  • Regardless of when or how the piece of art was acquired, has it gained significant value over the course of the marriage and/or been used as collateral for funding the lifestyle of the marriage?

This list is not exhaustive of the factors which will be considered for every piece of art in the collection, but it does give you an idea of how complex the division of certain pieces of property can be, especially in what we consider an high-asset divorce.

What if a Spouse is the Artist?

Another twist that may come into play with cases like these is when one (or both) spouse is the artist creating the art in question. While it's easy to think that what one spouse 'creates' during the marriage is 'rightfully' his or hers, it's not always that simple. Just like spouses who traditional 'make' or 'create' marital income/assets by working in a job where they are paid a paycheck or given benefits such as a retirement account or pension, the art which a spouse creates may inherently have its own value which must be divided between the spouses who shared in the effort to create it.

How does the non-artist spouse help 'create' the art, you may ask? Well, if the artist spouse is fortunate enough to be a full-time artist, where he or she stays home to create art while the non-artist spouse earns a traditional income to keep the lights on or pay for the art supplies, then the Family Court will likely view that as "shared" effort and the resulting artwork - whether paintings, photography, sculptures, or even written forms of art, like poetry or novels - to be a marital asset, subject to division in the divorce decree.

How is Value of the Artwork Determined?

If you've determined that there is artwork which must be divided, how do you go about valuing that art in order to divide it fairly between the spouses? Your attorney will likely need to hire a valuation expert at this stage of the case. The value which must be divided doesn't just involve the present-day value, or the price someone might pay for the piece should you decide to sell it. The expert will look at values which include whether or not the piece of art might generate future proceeds, as well.

As with cases where one or both spouses own a business or are otherwise self-employed, determining value and income which might be produced from an artist's work is a complex process which must be handled carefully to ensure that both spouse's rights are protected and the divorce decree addresses all avenues of property division. Since property division is typically final and not subject to modification, everyone needs to be assured that it is done correctly the first time.

How Do I Choose an Attorney to Help Me with My Case? 

Cases which require such complex property division should only be handled by the most experienced divorce attorney and his team of valuation experts. As stated above, property divisions in South Carolina are typically final and not subject to changes or modifications once the divorce is granted. Therefore, it is imperative to have the guidance of a firm who practices exclusively in this area of law and has the necessary contacts with other experts who will evaluate your case from all angles to protect what is rightfully yours. An experienced team will also be able to help guide you in setting up your post-divorce financial affairs so that your new future is as bright as possible going forward.

The Stevens Firm, P.A. - Family Law Center has provided exceptional legal counsel and support to families throughout South Carolina for over two decades, handling all matters of family law, such as child custody, child support, and divorce. We are well-equipped to handle all divorce and family law matters, including complex property valuations and divisions, no matter your circumstances. Contact us at (864) 598-9172 or click here to schedule an initial consultation. 

About the Author

Jonathan W. Lounsberry

Senior Associate Attorney

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