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Artists, your creations are subject to division in divorce

Many couples with significant assets dread divorce because that means splitting up the valuable treasures they collected during their marriages. For some divorcing spouses, this could mean dividing an art collection.

But you don't have to have a Picasso or a Warhol hanging over the sofa to own valuable artworks. In fact, if one of the spouses is an artist, these creations may all need to be professionally valuated right along with more traditional paintings from other artists.

How is my art marital property?

Many artists could be stunned to learn that artwork they created during the marriage is just another part of the marital property subject to division under the laws of Tennessee. So, too, are the copyrights to those works, as well as any potential revenue from licensing.

A possible exclusion could exist if the artist thought to protect any artwork with a prenuptial agreement stating that any future creations were to be exempt from the marital property.

If you are an artist in this position, it can be difficult to stop thinking of your artwork as pieces conceived and born of your creative efforts. But, now is the time to toss off your artist's beret and don a hardhat to do the difficult work associated with your divorce.

Your art and the law

Of course, if your own collection contains pieces created prior to your marriage, those are considered to be separate property by the courts. Also, if you contracted with a buyer to sell something on commission before you got married, but the piece didn't sell until after you got married, those proceeds would still not be part of the marital assets.

Do a thorough inventory

If these circumstances are germane to your Tennessee divorce, your first step should be to draft an inventory list of your artwork. Your list should contain creation dates, sell dates and sale prices and also any unsold art pieces and their location.

One New York City divorce attorney reminds artists that failing to disclose any unsold artwork and/or licensing agreements could be the catalyst of future litigation. An art and family law attorney in California concurs, stating that "[h]alf or even 100 percent of any undisclosed and unallocated assets may be awarded to the other spouse, depending upon if the failure to disclose is determined to be the result of fraud by the nondisclosing spouse."

It's also vital for a value to be assigned to these artworks. Art dealers, gallery owners and professional appraisers can all potentially put a value on an artist's unsold work. Some couples agree to use the same independent appraiser, but others prefer to each hire their own and negotiate a final value.

What about unfinished art?

Most artists typically have a piece or two in a state of flux somewhere short of completion. These, too, possess at least a speculative value that should also be factored into any proposed property division settlement. This is often when the non-artist spouse agrees to sign off on any future revenues from these pieces in lieu of being relieved of a certain portion of shared marital debts.

If all this sounds quite complex, it certainly can be, which is why divorcing artists must learn all that they can about the divorce laws in their states.

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