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Who Gets the Art in Divorce?

March 28, 2023

Art collecting is big business. The U.S. art market in 2021 was valued at $28 billion, up 31.5 percent over 2020 and almost at pre-pandemic levels. Many couples buy art for enjoyment or as an investment, which raises the issue of how to deal with artwork in the event of a divorce. There is no simple answer to the question of who gets the art, but there are several considerations that can help resolve disputes amicably rather than resorting to litigation.

Who Purchased the Art?

If the artwork was purchased before marriage, then that spouse will retain it in most instances. However, if it was bought during the marriage, the couple has to decide who gets it, or a judge will decide.

Who Wants the Art?

An important step is for both spouses to list what art they want to keep or if they prefer to receive monetary compensation for the amount it is worth. As long as both parties don’t want to keep the same piece of art, disputes can be resolved by valuing the art and accounting for it when the couple’s assets are split in equitable distribution

What Is the Art Worth?

Before the artwork can be divided, it may need to be appraised to determine its value. However, valuing art can be challenging. Both sides often hire their own appraiser, which can be problematic if the valuations differ significantly. The parties must agree on determining the final amount, such as by averaging the two appraisals or having the two appraisers recommend a third appraiser to make the final decision. 

What If Both Spouses Want the Same Piece of Art?

The spouses can use various methods to allow them a chance to pick what they want. For example, the couple could flip a coin to decide who picks first. The next spouse then selects two pieces of art to make up for being the second one to pick. Thereafter, the spouses alternate in making selections.

Another option is to have one spouse create two lists of all the artwork. The other spouse then picks which list of pieces he or she wants. The spouse creating the list is likely to be fair in choosing pieces for each list because he or she doesn’t know which one he or she will get.

It’s also important to consider practical issues, such as who has room for the artwork. If one spouse is retaining the home where much of the artwork is located and the other is moving to a smaller home, it may make sense to divide the artwork with that in mind.

Can You Give It to Your Children?

If you cannot settle your differences, you may want to consider giving the artwork to your children. This avoids spending time and money arguing over the issue.

Should You Go to Court?

It is best to avoid litigation when deciding who gets artwork. Judges may not be familiar with the art market and could simply order the artwork to be sold. That means neither party may get to retain the art and nor will they get the best price at a judicial sale.

If you are considering divorce, it is important to work with a divorce lawyer experienced in accurately evaluating the worth of assets like artwork to help ensure a fair settlement in your divorce. Contact our firm to learn how we can assist you with your divorce. 

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