Generally, states use one of two methods to divide property in a divorce. Some use a “community property model,” where they attempt to give each spouse an equal, 50% portion of the overall marital property. Most states use the second model, the equitable division system. This process focuses on distributing property based on fairness, attempting to give property to the more deserving of the two spouses. New York uses this model.
Digital assets count as a part of this division. They were purchased, and someone must be able to keep them after the divorce. In this article, we will discuss the types of digital assets that may exist in a marriage, how to distribute them, and how to argue for sole ownership.
Types of Digital Assets in a Marriage
The average American family shares a lot of digital property, even if they don’t realize it.
Digital assets you may share include:
- Digital pictures
- Digital music files
- Streaming accounts
- Digital video and movie files
Once you assess what digital property you have, you must figure out how to distribute it among the spouses.
Dividing Digital Assets in a Divorce
Normally, it’s easy to distribute the property after all necessary decisions have been made. This person gets that house, that person gets the car, and the money in the savings account is sent to the right person. Distributing digital assets, however, can be more complicated. These are intangible items, and it may not be possible to fairly divide them among two people.
Fortunately, most digital files are easily shared. You can copy the family pictures and video clips to a hard drive, SD card, thumb drive, or even to a shared, online storage account. This is the easiest solution for most files.
However, you could run into legal trouble for sharing the wrong files. Technically, it’s illegal to share any music or video files that you purchased, and no court would advocate doing so. One spouse must keep these for themselves, which probably means moving them to their personal storage device.
There is another issue to consider, one that can cause real problems: DRM protected files. “DRM” stands for “digital rights management.” Files with DRM will play only on the device or program where you purchased them. This can cause issues in a divorce.
Let’s say the couple shares a gaming system. One spouse bought Game A and is the only one who plays it. The other purchased Game B, and only they play it. In an equitable distribution system, these games should go to their respective buyers. However, doing so isn’t possible because the digital games are tied to the physical system. They cannot be shared, and moving or copying them won’t work.
In this scenario, the most likely outcome is that only one spouse will keep the gaming system, meaning that they will have sole access to both games.
Keeping Your Digital Property in a Divorce
For files you cannot share, you must prove that you are entitled to keep them. Generally, this will mean showing your rightful ownership of the file.
In an equitable system, ownership is rarely tied to who paid for something. It normally relates to which spouse used or contributed to the property. In the case of digital assets, it is probably most helpful to prove that you are the asset’s primary user.
For example, let’s look at the DRM example from earlier. There are many digital games on your gaming system, and they are shared equally among the family. Ultimately, you will need to prove that you are the primary user of the device. You can do this by proving that you used it more often than anyone else in the home. You could also explain that you often have friends over to have all-night gaming sessions, so the device is a crucial piece of your social life.
You could even cut a deal with the court, promising to buy your spouse the games they primarily play for their own system.
If you can prove that you are entitled to keep any property, the court should let you have it, whether it’s digital or physical.
If you have digital property you need to preserve in our divorce, call us at (516) 514-3868 for a free consultation. You can also schedule time with us online.