Who Gets the Art in a Divorce?

Preparing for a high asset divorce? One of the most hotly contested assets in a marital split is the couple’s art collection – particularly if they are passionate art collectors whose collection has come to be worth quite a large sum of money. As one of the last unregulated financial markets, art can be a highly valuable asset that carries sentimental and monetary value. Our Irvine high asset divorce attorneys have experience helping high net worth couples determine how to approach dealing with their art collection. You will need to be prepared to appraise your collection and consider whether some pieces will have to be put up for auction to divide the proceeds during your divorce. You have to be prepared for a substantial negotiation, depending on whether your divorce is contested or uncontested.

Dividing assets is never easy, and even less so when they are objects of this unique value. So, it begs the question – Who gets the art in a divorce?

How Irvine High Asset Divorce Attorneys Help Divide Art Assets

Determining who is entitled to keep the art will depend on various factors that your attorneys will consider in great detail. For example, your attorneys will want to know whether the art was something you purchased during the marriage or whether it came to you through an inheritance or was purchased solely by an individual spouse. It will also be crucial to determine whether the art came into your possession during or before the marriage – that’s particularly important in California, where marital property is considered anything acquired during the marriage only. Whether it was a gift from one spouse to another will also be relevant.

Regardless of how the artwork was acquired, your lawyers will want to know whether the artwork has gained significant value over the course of the marriage and whether it was used as collateral to back living or lifestyle expenses. 

How Will the Value Be Determined?

If your art collection comes into play during your divorce, your attorney will likely have the collection appraised to determine the total monetary value of it, should you choose to liquidate the collection in order to distribute the assets equitably. While some couples may be able to split the art according to who wants to keep which pieces, others may find that the only fair way to redistribute the assets is to sell some or all of the pieces in the collection and divide the profits. While this may not be ideal, it may be required depending on the particulars of your divorce.

Contact Our Irvine High Asset Divorce Attorneys to Get Started

If you’re considering a divorce and are worried about what might happen to your art collection in the process, you should consider speaking with our team of experienced Irvine high asset divorce attorneys. They can counsel you on the best path forward. Contact our offices today.

Frequently Asked Questions

How is an art collection valued in a California divorce?

By a qualified appraisal, and the standard of value matters as much as the appraiser’s credentials. Insurance or replacement value is typically well above fair market value, and fair market value is what governs division. The figure also depends on which market is used, auction results net of commission or a dealer retail price, and on condition, provenance, and documentation. Because two credentialed appraisers can differ substantially on the same work, the appraiser’s specialization in the specific period or artist carries real weight.

Is art bought during the marriage always community property?

Art acquired during marriage is presumed community property, whichever spouse selected it or has the interest in art. Art owned before marriage or received by gift or inheritance is separate, along with anything traceable to those sources. Where separate funds were used to buy a piece during marriage, the tracing must be proved from records. A work given by one spouse to the other during marriage raises a distinct question, because a substantial gift between spouses that is not merely personal in nature is generally treated as community property absent a written agreement.

Does a collection have to be sold and split?

No, and selling is usually the worst outcome economically. California requires equal division of the net community estate, not of each asset, so works can be allocated between the spouses, or the collection can be awarded to one spouse with an offsetting adjustment elsewhere. Collections sold quickly and in bulk realize less than their appraised value, particularly where the market for a given artist is thin. Dividing in kind, or a buyout of one spouse’s interest, generally preserves more value for both.

What about works whose value is disputed or hard to establish?

That is common with contemporary work, emerging artists, and pieces with incomplete provenance. Where the range of defensible values is wide, the practical solutions are to allocate the disputed works to one spouse with a contingent payment triggered by an actual sale, so the risk sits with the party who controls the decision, or to divide the disputed pieces themselves rather than argue about a number. Storage, insurance, and transport costs during the case should also be allocated by order, since they continue regardless of who has possession.