Delaware Property Division | DE Settling Disputes for Marital and Non-Marital Divorce Assets and Debts

In a divorce, the courts must sort out the property from the marriage. Legally speaking, the courts must turn 1 household into 2 separate households. Among the many issues a court must tackle in a divorce case, a universal one is property division, specifically Delaware property division.

No divorcing couple should ignore the guidance of a Family Law attorney. Property division laws can be confusing, vary from state to state and lawyers have the proper training and experience to tell the judge what a client wants or needs from the property division.

Property Division Divorce Laws in Delaware

The purpose of Delaware property division law is to make sure that marital property is allocated to each spouse equitably. Delaware marital property is divided under the considerations of 13 Del. C. §1513(a) but the trial court receives broad discretion when converting Delaware marital property into separate Delaware divorce property.

Delaware is an equitable distribution state. This means that with regard to Delaware divorce assets, anything the spouses acquired before a marriage usually will not be included in Delaware divorce assets or Delaware divorce property. The only property that comes into the court's distribution is that which is legally classified as property of the marriage under 13 Del. C. §1513(b).

What is considered Marital and Non-Marital Property?

Delaware marital property consists of items acquired during a marriage as well as separate items that are brought into a marriage and converted into marital property. There is a presumption under 13 Del. C. §1513(c) that all property acquired during a marriage is marital property regardless of how title is held.

Under Delaware law, gifts from one spouse to the other are marital property.

Non-marital property is property that each spouse had before the marriage as well as property exempt under 13 Del. C. §1513(b). The exemptions are:

Property acquired by a spouse through bequest, devise or descent or by gift if the gifted property is titled and maintained in the sole name of that spouse, or a gift tax return is filed reporting the transfer of the gifted property in that spouse's name or a notarized document, executed before or contemporaneously with the transfer, is offered reflecting this fact
Changing values in property one spouse acquired before the marriage
Property acquired in exchange for property acquired before the marriage
Any property classified as separate under an agreement between the parties

Dividing Assets and Debt

After the court decides which property is available for distribution, the next step is property valuation. The final step is the allocation of marital property.

Under 13 Del. C. §1513(a), the court considers a number of factors in dividing assets and debt. Some of these are:

The marriage's length
The parties' earning capacity
The parties' debts
Any awards of alimony already awarded to a spouse
Tax consequences to either party

Using the statutory factors, judges decide how a marriage's assets should be divided. Here is a list of the most common property items and the most common allocation scheme used.

Cash: Divided equitably among the spouses.
- Example 1: A joint savings account has $8,000. The court would most likely award an equitable portion to each spouse.
- Example 2: A joint savings account has $8,000. One spouse contributed $5,000 and the other contributed $3,000. The amount may be divided 50-50 or may be more equitable if the $3,000 contributor has fewer assets than the $5,000 contributor.
Retirement Plans: Divided based on the duration of the marriage at the time the benefits accrued, looking at the present value of the plan and/or survivor benefits.
- Example 1: A spouse got benefits in a retirement plan after working for 30 years and was married for 20 of those years. The ex-spouse would be entitled to a portion of the retirement plan that was acquired during the marriage.
- Example 2: A spouse has an unvested retirement plan. The unvested plan is marital property but no division takes place until the plan is payable to the spouse who has it.
Vehicles: Divided based on the values at a date determined by the court. May be sold or given to a spouse outright.
- Example 1: A go-kart is not operational. The go-kart may be sold with the proceeds to be given to a poorer spouse or divided among the spouses in some way.
- Example 2: A vehicle has a shared title. The vehicle may be sold with the proceeds divided among each spouse or given to a poorer spouse.
Insurance: Determined based upon each spouse's health, availability of alternate insurance and premium payments from marital income.
- Example 1: One spouse has covered the other under health insurance. The other spouse is in poor health and can afford alternate health care coverage. The court may permit the first spouse to drop coverage once the other spouse gets new coverage.
- Example 2: One spouse has a life insurance policy where the ex-spouse is to get survivor benefits. The court may require the insured spouse to keep this designation on the life insurance if it falls in line with equitable division of the marital property.

Settling Disputes in a Divorce Case with Property and Asset Division

If one spouse is not cooperating or feels the property division was unfair, (s)he may go to court to seek enforcement or reconsideration of the order. The court may find the uncooperative spouse in contempt.

However, the trial court's determinations will not be changed unless the property division was clearly unjust or the court did not consider all the statutory considerations listed in 13 Del. C. §1513.

Help From a Delaware Property Divorce Lawyer

Retaining a Delaware property divorce lawyer is key to getting the fairest result in the property division phase of a divorce. The lawyer can provide professional guidance, keep you informed of likely outcomes and help you give the best presentation to the trial judge handling the divorce.

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