Artists or artists’ spouses in Virginia who are divorcing may not be aware that the work created by an artist during marriage is considered joint marital property. As such, it is subject to division during the divorce like any other asset. Works created prior to the marriage or for which payment was agreed before marriage are exempt. This includes not just artwork like paintings, but works that fall under copyright.
An artist should make an inventory of the work, and it is important not to conceal assets. If this is discovered, 50 to 100 percent of the asset may be awarded to the other spouse.
Assessing the value of unsold work can be complex. A spouse may not think the work is worth as much as the artist does and may agree to trade other assets in exchange for the art. Some prominent artists have worked out creative arrangements with their ex-spouses. Comedian Jerry Lewis retained full ownership of his films, but his wife of 35 years was given a half-interest in royalties. The creator of the “Peanuts” comic strip, Charles Schultz, paid his wife 27 percent of his revenue initially, but over 10 years, it decreased to 15 percent.
Artists and their spouses will have different needs depending on where the artist is in their career and what their financial arrangements were. For example, an artist at the start of a career may have been working only part-time or not at all. In such a case, the spouse might have to pay support for a time, or the artist might relinquish support in exchange for keeping the artwork. An established artist at the time of marriage might want a prenuptial agreement to protect the artwork.