Before filing for divorce, Florida artists should be aware that their artwork is usually considered an asset in divorce proceedings. Works created before a marriage or after separation or divorce are usually not considered as part of the marital assets, although proceeds from such works may be included in the value of the marital estate if they were sold during the marriage and/or provided a substantial amount of domestic income.
While not all works of art are considered to have intrinsic value, they generally have speculative value. This type of value may be considered in a divorce settlement, and the spouse is usually entitled to 50 percent of the speculative value. It is sometimes possible to reach an agreement where the spouse is paid residual income off the ongoing sale of artwork for a set period of time.
The spouse may also retain entitlement to half of the copyright from works created or sold during the marriage as well as rights to any income which derives from the sale or transfer of copyright. Typically art may not be sold, destroyed or transferred without the spouse’s consent. Works of art that are not appraised or allocated prior to the settlement could result in lawsuits by the non-artist spouse and possibly lead to civil or criminal fraud charges.
The attorney may present a spouse with a divorce settlement agreement offering residual interest in the works or real estate or investment holdings in lieu of residual income. If a settlement cannot be achieved, the attorney might then proceed to an open trial to resolve the matter.