Who gets to keep the art in a divorce?

Divorce can sometimes lead to disagreements over which party gets what and this extends beyond the things we typically think of, such as homes and vehicles. Smaller things can also have great value monetarily and sentimentally and can be a source of conflict during divorce.

Equitable distribution

First, it is important to understand that New Jersey uses an equitable distribution doctrine in divorce, which means that the court divides assets fairly but not necessarily equally.

Another key factor is distinguishing marital property from non-marital or separate property, which is critical before the court divides the assets.

Marital vs. non-marital property

As with anything that a couple wants to divide in a divorce, the parties must establish who the art belongs to. Art acquired during the marriage will typically be marital property. In contrast, art owned by one spouse before the marriage is generally separate and not subject to division by the courts in a divorce.

However, even in cases where art belongs to one party, if it appreciates in value during the marriage, that increase in value could be subject to distribution.

Valuation

After determining who the art belongs to and whether any portion of its value is subject to distribution, the parties must appraise it to determine its fair market value. Typically, couples will either agree on who to hire to appraise the item, or each party will provide an appraisal.

Agreement

When everyone agrees on who the art belongs to and how much it is worth, the parties must negotiate who keeps it. This may involve trading other assets or compensating the other party financially.

For effective negotiation, the parties must be willing to reach a mutually acceptable agreement. Typically, it is best to allow the attorneys to negotiate these matters, as they can quickly become contentious.

Court decisions

If the parties are unable to reach a mutually agreeable settlement and negotiations fail, they can ask the court to decide who keeps the art. Judges usually consider all of the above factors plus additional ones, like the parties’ financial situation, the emotional significance of the item and other factors they deem important.

The division of assets is an integral part of the divorce process but can also lead to disagreements between the parties. Having experienced legal representation is critically important to achieving the best outcome possible.