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Delaware Property Division
Property Distribution Laws in Delaware

In Delaware, the court generally accepts a fair and reasonable property division the parties agree to, but if the parties cannot agree, the Family Court divides the property within the Judgment of Divorce.

Delaware is an equitable distribution state. It uses the dual classification model, and the appreciation of separate property is separate. Equitable does not mean equal, or even half, but rather what the Family Court considers fair.

The Delaware property division law insures an equitable distribution to each spouse. When the parties are unable to reach a settlement, the Family Court does it for them after considering a number of factors. Delaware marital property is divided under the considerations of 13 Del. C. Section 1513(a) but the court enjoys latitude when dividing property. Equitable distribution means that property the spouses acquired before a marriage usually is not subject to distribution. 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. Section1513(b).

Factors in Equitable Distribution

In dividing marital property the court considers all relevant factors including:

  • the duration of the marriage;
  • any prior marriage of the party;
  • the age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties;
  • whether the property award is in lieu of or in addition to alimony;
  • the opportunity of each for future acquisitions of capital assets and income;
  • the contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker, husband, or wife;
  • the value of the property set apart to each party;
  • the economic circumstances of each party at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the party with whom any children of the marriage will live;
  • whether the property was acquired by gift;
  • the debts of the parties; and
  • tax consequences.

Marital misconduct is not a factor in the distribution of marital property.

The terms and conditions of property division are in the Delaware Code - Title 13 - Chapters: 1504, 1513.

Marital Property vs. Separate Property

Delaware marital property includes assets acquired during a marriage as well as separate items that are brought into a marriage and converted into marital property. Under 13 Del. C. Section 1513(c), the court presumes that all property acquired during a marriage is marital property regardless of title, whether individual or joint.

Property is separate if one spouse owned it before marriage or acquired it during marriage by inheritance or gift. Gifts from one spouse to the other are marital. The spouse who claims sole ownership must produce proof of sole title and sole maintenance, such as a gift tax return or a notarized document executed before, or at the same time as, the transfer. Separate property also includes items purchased with or exchanged for property one spouse acquired before marriage. Appreciation remains separate. A couple may use a prenuptial agreement to exclude property from equitable distribution.

Marital and separate property can become commingled – mixed together. Some couples combine their separate assets intentionally; sometimes it happens because of simply not paying attention. A premarital bank account owned by the husband can become marital property if the wife makes deposits to it, or a house owned by one partner alone can become partially marital property if both spouses pay the mortgage and other expenses.

When the spouses cannot unravel commingled property, the court decides who should receive how much, but these problems can become tricky.

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

Property Defined

Property is either marital or separate, but property in a divorce means “all property acquired by either party subsequent to the marriage except” exempted property, which is separate. Some financial assets, such as retirement accounts, can be very difficult to evaluate and require the assistance of a financial professional, such as a CPA or an actuary.

Valuing and Dividing Property

First, the court goes through a discovery process classifying property, separate or marital, and placing a value on all property and debt. Finally, it distributes the marital assets between the two parties in an equitable fashion.

Spouses can divide assets by assigning certain items to each spouse, possibly with an equalizing payment if one spouse gets substantially more than the other, or by selling property and dividing the proceeds. They can also agree to continue to own property together. While many people aren't thrilled about this, as it requires an ongoing relationship related to something other than the kids, some couples agree to keep the family home until children are out of school. Others may keep investment property hoping it will increase in value.

The couple - or the court - must also assign all debt accrued during the marriage, including mortgages, car loans and credit card debts, to one of the spouses.

The Marital Home

Spouses can:

  • sell the house and divide the equity, which is the amount left after satisfying the mortgage;
  • agree to a buy out, where one spouse sells his or her half of the equity and the other becomes sole owner of the property; or
  • continue to own the house together. The third option does not appeal to many because it requires continuing contact, but some couples agree to keep the family home until children are out of school.

Pensions and Retirement Accounts

In Delaware, vested pensions are marital property. A pension vests when all the requirements to receive the pension have been met. Unvested pensions are also marital property. Until the pension has vested, the person under whom the pension is maintained has only an expectancy of interest in the pension. 

Several different methods of valuation are used in determining how much a marital asset is worth, depending upon the asset to be valued and the level of agreement between the parties. Courts generally accept the value when the spouses mutually agree on a value of a particular asset. Experts may be retained by the parties or by the courts to determine the value of marital assets if the parties cannot agree. Such experts may include accountants, real estate or business appraisers, or pension valuators. The use of experts adds to the cost of the divorce.

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