Another incident involved a couple taking three hours to fight over a kid’s bed in a mediation. Both the couples were represented by attorneys. When reminded of this fact and what they were paying the lawyers and mediator 1 hour into this fight the couple then took two more hours to come to a compromise.
Not too long ago a new type of property came up in one of my divorce cases. The couple had an iTunes account with several thousands of dollars of digital content. However, this item was quickly resolved and did not become a problem.
Texas Community Property law says that all community property acquired during a couple’s marriage is subject to division. However, having an iTunes account of my own I was curious about whether there would be a simple way to divide this digital property had the couple insisted on fighting over the iTunes library.
Just and Right Division
An iTunes library is a digital asset that is an intangible good. This digital asset raises the question of whether it is subject to division during a divorce and whether it can be valued.
Once digital assets are identified, the next step, as with the analysis of any asset of the marriage, is to determine whether the asset was acquired during the marriage, making it community property subject to division in a divorce, or whether the asset was owned before the marriage and is therefore separate property and outside the reach of a family law court. This analysis is the same for all marital assets.
Although at this time there is not a lot of law that specifically deals with this topic, when it comes to the division of digital assets, Texas will apply the standard of a “Just and Right Division” to divide, allocate and value these assets.
Marital property is assigned a value and then it is distributed equitably, or fairly, between spouses. Such division does not always result in a 50/50 split, but rather it is distributed in a “Just and Right” manner.
Much like a car cannot be split in half, neither can many digital assets. Additionally, unlike the owner of a car which can typically be transferred quite easily to the other spouse, transferring ownership of digital assets is not always possible.
However, if a value can be assigned to the iTunes library then the party who does not get the library can have an offset from some other asset of like kind or value.
My preliminary investigations brought me to a 2012 discussion on the apple.com website. From that discussion, I learned that other couples had faced this divorce problem. That discussion also suggested that “Content purchased from the iTunes Store is permanently associated with the account from which it was originally purchased, with no way to change that.” This would mean at least in 2012 there was no way to divide up a digital library.
Fast forward to 2016 it seems that answer from 2012 is the same. At this time it does not appear that Apple has an easy solution for couples sharing the same iTunes account to divide up digital content.
Although not a solution for couples in the situation above. It appears that Apple did come up with a plan in 2014 that if followed could prevent the above situation from becoming an issue. “Family Sharing” Allows couples to have separate accounts in which they buy whatever they want and share it with their partner.
When a couple leaves Family Sharing, their Apple ID is removed from the family group, and they stop sharing music, movies, TV shows, books, and apps with any remaining family members. In addition, any photos, calendars, and reminders shared by the family group will be removed from their devices.
Any content that a family shares with their spouse aren't automatically removed from their device. It can be purchased again or removed to free up space on their device. If they downloaded an app from a family member’s purchase history and made In-App Purchases, they will need to purchase the app for themself. They will keep any purchases they initiated while part of the family group.
After finding out what I could from Apple itself I then looked for third-party suggestions and solutions. Some that I came across included:
- Burning CDs for the spouse of the songs that were desired. However, the caveat was this may not be possible if the songs are protected by iTunes DRM software.
- Services such as Amazing might make it possible to get your digital content off your iPhone and onto another.
Many times the law has yet to catch up with the modern sense of ownership. However, in this case, it would appear the digital world, or at least Apple has yet to come up with a good solution for the real world that would allow an “equitable distribution” of a couple’s digital library in a Texas Divorce.
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Law Office of Bryan Fagan, PLLC | Spring Divorce Lawyers
The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Spring, TX Divorce Lawyers right away to protect your rights.
Our divorce lawyers in Spring TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact the Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Spring, Texas, Cypress, Spring, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, and surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County, and Waller County.