How Should Technology Be Divided Upon Divorce?

August 10, 2012

490822_ipod_video.jpg
The average divorce in San Diego involves more than just dividing up the family house and vehicles. Today, most Americans are connected to some mobile device from the moment they wake up each morning. Courts, according to California community property law, have traditionally divided tangible family assets between the spouses. However, parties are now wondering who will be awarded cell phones, iPads, iTunes accounts and access to iCloud. During marriage, many spouses store family data on one iCloud account. This account could potentially be a virtual asset the parties wish to divide.

As we have previously blogged, social media is becoming an important tool in divorce proceedings. Websites such as Facebook are used to provide courts with evidence of a spouse's wrongdoing or misconduct. However technology is invading San Diego family courts in a new way. Spouses now have digital community property assets to be divided upon divorce. As a general rule, each community property asset is divided equally upon divorce. An asset is a community asset if it was acquired during the marriage and before the date of separation. All other property acquired before marriage and after the date of separation is separate property.

Virtual property presents a new challenge to the community property system. How can a shared iTunes account be divided in half? Will the court allow each party to present a case as to which songs they would like to receive as part of the judgment? How can a court divide digital storage space, books, movies, or games? Many spouses also have amassed a large collection of characters, virtual clothing, weapons, and currency in online communities and games. These virtual acquisitions become community property when they are purchased with actual community funds.

Currently there is no U.S. precedent to provide guidance to courts that may be required to divide virtual community property. However, a woman in China has brought the battle over virtual assets to the forefront overseas. The woman met her future husband through a virtual game and after their marriage, the couple continued to play the game together under the husband's account. Although the husband controlled the password and virtual currency, the woman had access to the account. Upon divorce, she requested that the assets accumulated during marriage through her husband's account be divided. Although the court did not rule in her favor, it stated that virtual assets are divisible if valued with real currency.

Since there are no laws currently regulating the division of the virtual community estate, parties may wish to include such assets in a premarital agreement. Additionally, parties are free to characterize property however they see fit during marriage through agreement.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only lawyer in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.