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Living in the 21st century digital world is nearly inescapable at this point. Digital assets abound and can include some unexpected items that may actually possess some unexpected value. Don't believe it? A digital trading card of Hans Solo, that was recently released, goes for $225.
Digital assets can include items that have real, transferable monetary values, like online bitcoin accounts, or simply items that have high sentimental value, such as collections of family photos. Regardless of how an item is valued, during a divorce, both tangible and digital assets must be divided, but some digital assets may prove more challenging to divide. As such, including digital assets in a prenuptial agreement is becoming increasingly advisable.
Below you'll find three legal tips on how to include digital assets in a prenup.
1. Agree to Maintain Separate Accounts
For things like iTunes accounts, digital music, movies, games, and apps, you may just want to agree to maintain separate accounts that will remain separate property, or will be appraised, valued, and offset upon divorce. As opposed to sharing one account, maintaining separate accounts might require a double purchase of an app or game that both you and your spouse want to use. This downside occurs most often with entertainment-related digital assets because these usually only provide purchasers with a single user license, meaning that a game, app, or digital download can only be used by one account.
Note that some digital game assets and collections may be transferable and can be valued at thousands of dollars (i.e. the Hans Solo digital trading card mentioned above). As such, you may wish to put a dollar threshold on the value of separate digital accounts.
2. Appraise and Clearly Identify Separate Digital Property
Any couple considering a prenup these days likely already has a collection of digital assets, such as their iTunes music library. Most states will consider property acquired prior to marriage as separate property. However, over time, if separate property appreciates in value during the course of a marriage, it could become partly marital or community property. The same is true for digital assets, and can include assets such as social media accounts, particularly if they are related to a business or occupation, or even websites, such as blogs or online businesses.
In a prenup, it can be helpful to identify all separate digital assets, and agree that certain ones, like those relating to only one spouse's business, remain separate property. Appraising prior to a prenup can be helpful to ensure that spouses are fully aware of the value, and can track the increase or loss in value for purposes of offsetting property division.
3. Agree to Copy What You Can
Digital assets often include items that can be copied freely, such as photos, home movies, and even music. For digital items that can be copied for free, such as iTunes music without DRM protection, it can be agreed to that these will be copied and shared. However, for digital photos, you may want to include a provision prohibiting the sale of photos, as technically the copyright is held by the person who takes the photo, and likeness rights vary from state to state.