An artist who creates a new work generally owns the copyright to that work. This means that the artist alone can make money from it in the future. However, in a divorce case, any copyrights owned by the artist may need to be shared with the other spouse. In some cases, this means agreeing to put a value on work produced during the marriage whether it is up for sale or not.
In some situations, this will require getting an expert to determine how much a work or collection of work may be worth. Each side may use their own expert, which may make it more difficult to come to an agreement on how to split the property in a divorce settlement. However, the holder of the copyright may have some leverage in determining how much of those earnings go to the other spouse.
Just like marital property is split during a divorce, marital debt is also split. This means that both spouses may be responsible for any obligations that have been incurred during the creation of a particular work. In exchange for freedom from future debts, a spouse may agree not to make a claim for any future earnings derived from a given copyrighted piece of art. Additionally, any work created before or after the marriage is considered separate property.
The division of assets may be a contentious issue during a divorce. However, an attorney can assist a client in attempting to negotiate a settlement agreement with the other spouse that incorporates these and other matters and that can be approved by the court. Settlement talks that proceed in an amicable manner are often better for any children that the couple may have.
Source: Huffington Post, “For Artists, Divorce Means Splitting Up the (Art) Assets”, Daniel Grant, March 3, 2015