When you're married, most of the things you acquire are going to be considered marital property. However, what about the things that you create?
Whether you're a writer, photographer, painter or some other type of artist, you're probably familiar enough with the law to know that you own the right to all of your original works. However, that ownership is not exclusive if you're married. Your spouse also has an interest in whatever you produce, both published and unpublished.
Your spouse also has an interest in any licensing agreements or anticipated revenues from your work. The only pieces or agreements you can generally exclude are those made prior to your marriage or after your separation.
It works this way because the art that you produce is really no different than something like a non-artist's 401(k) plan. Your art is a product of your labor -- but so is the money the non-artist uses to fund the 401(k).
However, dividing up artwork may ultimately be harder than dividing up even a complex pension plan -- and not just because everything you make seems so personal to you. It can be very difficult to place a dollar value on each piece of your catalog. For example, a published photo that's licensed for commercial use on everything from coffee cups to posters may have a known past value, but the market can change swiftly.
The revenues you get today from a body of your work could vastly decrease -- or increase -- tomorrow. It may be even harder to assign a value to a stack of unpublished photos because you can't easily predict which pieces will capture the imagination of a buyer and which will keep sitting on the shelf.
The more extensive your work and the greater your commercial success, the more difficult the process can become. You have to balance the need to be transparent about each piece's value, in order to avoid future lawsuits, with the equally important need to be pragmatic, in order to avoid overvaluing your work and giving your spouse too much in the divorce.
If you're an artist who is approaching a divorce, it's important to speak to an attorney as early as possible about the valuation and division of your work. For information on how our firm may be able to help, please visit our page on property division.