Navigating Divorce as an Artist: Your Former Spouse May Have an Interest in your Art

October 31, 2022

From the Editors: For those interested in the mechanics of splitting marital property of non artists, read our article “good Art Ungly Divorce.”

By Nikki Vafai

Remnants of a crumbling marriage, the marital property left behind create tough and personal questions for often revenge-filled couples. Who gets to benefit from a medical or legal degree, who keeps the wedding gifts, and who gets to hold on to the art made during the marriage? Divorce is certainly made more complicated when one spouse is an artist. In such situations, the art created by a spouse during the marriage is not handled in the same manner as a work of art that was acquired by the couple during the marriage through purchase or gift, for example.

In the United States, the way in which artwork created by an artist going through divorce is divided depends on the laws of the state in which the divorce is filed as well as the type of jurisdiction that state has. There are two types of jurisdiction a state could have: community property jurisdictions and equitable distribution jurisdictions. In community property states, income or property acquired by one spouse belongs to both spouses and is equally divided between the spouses. This includes art created by a spouse during marriage. However, the majority of states are equitable distribution jurisdictions, which means that property is fairly distributed between spouses. Courts determine how to divide the property equitably based on a number of factors which vary depending on the state but can include the length of the marriage, each spouse’s income, and the value of the property.

Depending on the state in which a divorce is filed, an artist’s spouse may have rights to the copyright, the physical artwork, or the monetary value of the artworks created by the artist spouse during the marriage.

Copyright

On a federal level, copyright is initially vested in the artist upon the creation of a work of art.^[1] However, community property states, such as California, allow an artist’s spouse to have an interest in the artist’s copyright.

When a couple divorces in a community property state, courts follow In re Marriage of Worth, the 1987 case involving the divorce of author Frederick Worth and his wife Susan.^[2] Frederick Worth sued the producers of a board game for copyright infringement of books he had written.^[3] Given that the books had been written and published during Frederick and Susan’s marriage, Susan sought an order from the court declaring that half of the proceeds derived from Frederick’s lawsuit against the board game’s producers belonged to her.^[4] The court sided with Susan, ruling that marital community has interest in a copyright.^[5] The court reasoned that “since the copyrights derived from the literary efforts, time, and skill of the husband during the marriage, such copyrights and related tangible benefits must be considered community property.”^[6] The court also noted that joint or equal spousal efforts or contributions in acquiring the property is not necessary.^[7] So long as one spouse expended effort to create or acquire property during the marriage, the copyright is a divisible community asset.^[8] As a result of this case, spouses might have an interest in an artist’s copyright.^[9]

Another case guiding copyright of art created by a spouse during marriage in community property states, and which built on In re Marriage of Worth, is Rodrigue v. Rodrigue. The case involved the divorce of artist George Rodrigue and his wife Veronica Rodrigue in Louisiana. George had created numerous paintings during the marriage and even filed for copyright protection with the United States Copyright Office for some of his works.^[10] George filed action in federal court seeking a declaration that he was the sole owner of intellectual property rights in all his paintings.^[11] The court held that the author spouse exclusively holds the rights “to possess, use, transfer, alienate, and encumber the copyright as he sees fit–free of any management, consent, or participation of the non-author spouse.”^[12] The court established that the non-author spouse only has a shared right to the fructus, or right to economic benefit of the copyright.^[13] This means that royalty proceeds from selling a license to use a work of art, for example, would be owed to the non-artist spouse.

Marital Assets

In community property states, where income and property equally belong to and are divided between spouses, works of art created by an artist spouse during marriage belong to both spouses and will be divided equally between the two. However, in equitable distribution states, such as New York and Florida, where marital property is divided fairly, the artwork or value of the work created by the artist spouse are also divided fairly and equitably. In equitable distribution states, the court often allows the couples to divide the property on their own or to allow the court to decide how to divide the art. Courts sometimes order the sale of a certain item and divide the proceeds between the spouses instead of awarding the item to a spouse. When it comes to art, it is very sentimental to the artist and judges frown upon taking property from someone who created it. Therefore, the value of the art is distributed instead.

As for gifts given by an artist to the other spouse during the marriage, they are considered marital property.^[14] Marital gifts are fairly divided between spouses. If the non-artist spouse wishes to retain the artistic gift then they must give something of equal value to the artist spouse.

Exceptions

Separate property is not a marital asset and belongs solely to one spouse. Separate property will not be distributed between the spouses after divorce. Exceptions in the case of artists divorcing include:

• Artworks created prior to the marriage;^[15]
• Artworks created after the couple has separated or filed for divorce;^[16]
• Payment agreements that an artist has entered into prior to the marriage;^[17] and
  • This includes works on commission or licensing agreements
  • Applies to works that are delivered or transferred after the marriage
• In some states, works that the spouses have agreed to consider separate

Steps to take as an Artist and Valuation

For artists, prior to or during marriage, it is critical to develop an inventory of all artworks made, both before marriage and during.^[18] Factors such as which works have not been sold, which have been sold, and the price at which they were sold might be taken into consideration when determining how to divide the art.^[19]

As for works that are unsold, they have a speculative value. It is not advisable to put a large number of artworks on the market at once, as it could result in lower prices. Instead, judges prefer artists and their spouses to assign values to art, without the involvement of the court. Artists and their spouses should go to an appraiser or gallery owner for valuation.^[20] The value of past works sold by the artist will be taken into consideration and will influence the speculated value of remaining unsold works created by the artist during the marriage.^[21]

The non-artist spouse might agree to not take earnings on the sale of or the monetary value of an artist spouse’s artwork in return for a debt payment, as debts accrued during the marriage belong to both spouses.^[22] Artists can also negotiate with their spouse by trading other assets like real estate and investments in return for retaining their works of art.^[23]

What Not to Do

Until the divorce and property division have been finalized, artwork may not be loaned, sold, or destroyed.^[24] If, however, the other spouse consents, then the profits of the sale or loan of the art is to be shared by both spouses.^[25]

Artists should take heed while developing an inventory of their art and disclose all works of art created. The consequence of not disclosing all of your works could mean having fifty to one hundred percent of all undisclosed and unallocated assets awarded to the other spouse.^[26]

Attempting to repudiate your own work of art or refusing to authenticate the work as a means to make the work of art unmerchantable for your spouse will likely not only not fool courts and not establish as a matter of law that the work is not yours, but it will only result in unnecessary court and attorney’s fees. In Arnold Herstand & Co. v. Gallery: Gertrude Stein, Inc., Gallery Gertrude Stein acquired a painting which it believed had been created by artist Balthazar Klossowski de Rola, known as Balthus, from his then wife.^[27] Arnold Herstand, a gallery which purchased the work from Gallery Gertrude Stein, brought action to rescind consignment, claiming that the drawing was not genuine.^[28] Balthus submitted multiple certifications of falsity and an affidavit swearing that the work was not created by him.^[29] The Supreme Court of New York County stated that the artist’s certifications were pure hearsay and rather relied on expert testimony to establish that the work was in fact created by Balthus.^[30] The court cited the expert’s testimony in their conclusion, drawing that Balthus repudiated the work in an attempt to make the work unmerchantable and unsalable, as a form of revenge towards his ex-wife.^[31] This case demonstrates that declining to authenticate a work created by an artist belonging to the former spouse will likely not be an easy or successful tactic.

Conclusion

While art created by an artist is very personal and artists may not want to share their copyright with their former spouse or to share the value of the work, it is best to be transparent during divorce. In general, courts defer to the artist and their spouse by granting them the freedom to choose their own appraiser and system of valuation for the art works. Choosing not to disclose works created during the marriage or attempting to repudiate artworks can make the divorce and division process messier and may result in the non-artist spouse gaining more rights to the artwork.

About the Author:

Nikki Vafai is a law student at the University of Maryland Carey School of Law and holds a B.A. in International Affairs and Art History from the George Washington University. Nikki is a 2022 fall legal intern at the Center for Art Law.

1. 17 U.S.C. § 201(a) ↑
2. Katarina Feder, “Can My Ex Walk Away With the Copyright to My Art in Our Divorce? + Other Thorny Artists’-Rights Questions, Answered,” Artnet News, (September 9, 2020), https://news.artnet.com/opinion/can-ex-walk-away-copyright-art-divorce-thorny-artists-rights-questions-answered-1906778 ↑
3. In re Marriage of Worth, 195 Cal. App. 3d 768 (Cal. Ct. App. 1987) ↑
4. Id. ↑
5. Id. ↑
6. Id. ↑
7. Id. ↑
8. Id. ↑
9. Id. ↑
10. Rodrigue v. Rodrigue, 218 F.3d 432 (5th Cir. 2000) ↑
11. Id. ↑
12. Id. ↑
13. Id. ↑
14. Daniel Grant, For Artists, Divorce Means Splitting Up the (Art) Assets, HuffPost (May 3, 2015), https://www.huffpost.com/entry/for-artists-divorce-means_b_6794676 ↑
15. Jonathan W. Lounsberry, The Art of Divorce, American Bar Association, (July 30, 2019), https://www.americanbar.org/groups/litigation/committees/family-law/practice/2019/the-art-of-divorce/ ↑
16. Id. ↑
17. Daniel Grant, For Artists, Divorce Means Splitting Up the (Art) Assets, HuffPost (May 3, 2015), https://www.huffpost.com/entry/for-artists-divorce-means_b_6794676 ↑
18. Nicole Martinez,Why you Should Hire an Experienced Art Appraiser in a Messy Divorce, Artpreneur (November 8, 2016), https://artrepreneur.com/journal/artbusiness/art-appraiser-divorce/ ↑
19. Daniel Grant, For Artists, Divorce Means Splitting Up the (Art) Assets, HuffPost (May 3, 2015), https://www.huffpost.com/entry/for-artists-divorce-means_b_6794676 ↑
20. Daniel Grant, When Artists Divorce, International Sculpture Center, (October 19, 2016), https://sculpture.org/blogpost/1860266/349830/When-Artists-Divorce ↑
21. Id. ↑
22. Daniel Grant, For Artists, Divorce Means Splitting Up the (Art) Assets, HuffPost (May 3, 2015), https://www.huffpost.com/entry/for-artists-divorce-means_b_6794676 ↑
23. Id. ↑
24. Id. ↑
25. Id. ↑
26. Id. ↑
27. Arnold Herstand & Co. v. Gallery: Gertrude Stein, Inc., 211 A.D.2d 77 (1995) ↑
28. Id. ↑
29. Id. ↑
30. Id. ↑
31. Id. ↑