The law in Pennsylvania calls for marital property to be divided equitably in a divorce, but determining what is and what is not a fair outcome may not be easy when divorcing spouses have become emotionally attached to the assets being discussed. This is often the case when art collections that have taken years or even decades to amass must be divided. In these situations, the first step taken is usually determining which pieces are part of the marital estate and which pieces are separate property.
Marital and separate property
Assets that a divorcing spouse already owned when they got married are not usually divided in a divorce because they are considered separate property. However, separate assets can sometimes become part of the marital estate through a process known as commingling. This happens when separate assets are maintained or improved with community funds, such as the money in a joint bank account. If you owned artwork before you got married but used money from a joint bank account to restore, refinish or insure it, it may have become commingled.
Dividing artwork in a divorce
Artwork cannot be divided in a divorce until both spouses agree how much it is worth. In a friendly divorce, a single appraisal may be all that is needed. In a contentious divorce, several appraisers may be called in before the spouses are able to see eye to eye. Once a value has been agreed upon, negotiations can begin. When artwork is involved, the spouse who collected it may seek to keep the collection intact by offering real estate, automobiles, investments or cash in return for the other spouse’s share.
Avoiding property division negotiations
Dividing artwork in a divorce is often an emotionally wrenching process that could be avoided by having a prenuptial or postnuptial agreement in place. Dealing with these matters in a proactive way provides peace of mind while a couple is married and may prevent costly and public court battles if they divorce. If the time for drafting a prenuptial or postnuptial agreement has already passed and reaching an amicable agreement at the negotiating table seems unlikely, a less adversarial venue like mediation could provide a breakthrough.