DelawarePost Divorce Property Division
Delaware Property Division Guide :: Table of Contents
What is property division in a Delaware divorce?
Also known as equitable distribution, property division is the process of dividing property rights and obligations between spouses during the process of a divorce. Property division may be agreed upon between the soupses through a property settlement, or it may be decided in court during the judicial process of divorce. The process of property division is affected by state laws such as community property laws, definitions of marital contributions, etc.
Delaware is an equitable distribution state, and only property acquired during the course of the marriage is subject to division following divorce. Some factors considered by Delaware courts in a property division case include non-monetary contributions and a list of other factors defined in Delaware law. This page summarizes the most important aspects of property division laws in Delaware.
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Delaware divides marital assets via equitable distribution, which means that the court attempts to divide marital assets in a fair and equitable manner between the spouses, taking multiple factors into account in order to determine the equitable distribution for each spouse.
Under Delaware law, marital property is that which is acquired or is a direct result of the labor and investments of the parties during the marriage is subject to equitable division. Equitable division does not mean marital property is divided equally, it is divided in manner that results in a fair or equitable result for each spouse.
A court will make an equitable division of marital property based on the following factors:
the length of the marriage
whether a party had been previously married
age and health of a spouse, amount and sources of income, vocational skills, employability, liabilities and needs of each of the parties
whether the property award is is in lieu of or in addition to alimony
the contribution of each spouse to marital assets, the value of the marital property
the economic circumstances of each party
the debts each party holds and the tax consequences of dividing marital property.
Alternatively, non-marital property or property defined as property acquired by one spouse prior to the marriage or property acquired by on spouse by gift, inheritance, bequest or devise, even though during the marriage, remains that spouse's separate property is not subject to equitable division.
Delaware Property Division FAQ
- Is Delaware a community property state?
- Does state of Delaware only divide marital property after a divorce?
- Is there a set list of statutory factors for determining property division in the state of Delaware?
- Do courts in the state of Delaware consider nonmonetary contributions?
- Does Delaware consider a spouse's economic misconduct in property division?
- Are contributions to education considered in the state of Delaware?
- Can a pre-nuptual agreement affect property division in Delaware?
- How can I enforce a property division order in Delaware?
- Dower and Curtesy in Delaware?
Is Delaware a community property state?
Delaware is NOT a community property state, which means that marital property is not automatically divided 50/50 between the spouses in a divorce case.
Instead, Delaware judges determine property division under the equitable distribution policy, which means that the court divides property between the spouses in what is believed to be a fair distribution, based on each individual's contributions to the marriage and their earning ability and needs following separation. Factors such as one spouse's economic misconduct may also be considered.
In practice, judges in an equitable-distribution state like Delaware often divide marital property with approximately 2/3 of marital assets going to the higher-earning spouse, and 1/3 going to the lower-earning spouse.
Does state of Delaware only divide marital property after a divorce?
In the state of Delaware, only property or assets considered "marital property" or "community property" are subject to division in a divorce case. This means that property owned by either spouse prior to marriage is exempt, as are certain individually-owned assets acquired during the tenure of the marriage.
Some individual property may be considered to be "partial community property" or even ruled to be fully community property due to contributions by the other spouse or co-mingling of assets, which may lead to complicated property division situations.
Is there a set list of statutory factors for determining property division in the state of Delaware?
Delaware has a list of factors set by statute that specify what the court will use to determine a fair property division. Examples of factors that are often taken into consideration during property division cases include:
- Marital Fault - In states that allow at-fault divorces, the fault of one spouse may be used by the judge to justify a higher percentage to the injured spouse.
- Income and Earning Capacity - The court may consider the relative incomes and earning capacity of each spouse, which may be affected by factors such as age, education, and health. The spouse with lower economic prospects may receive a larger percentage of the estate.
- Custody of Children - If one spouse has full custody of the couple's children following the breakup, this may result in higher likelihood of receiving a higher percentage of the estate, or certain pieces of marital property (like the family house).
Do courts in the state of Delaware consider nonmonetary contributions?
In Delaware, statutory law requires judges deciding a property division case to account for the nonmonetary contributions of both spouses to a marriage when determining how to divide property between them. In practice, this generally means that the judge will consider the value of the labor a stay-at-home spouse contributed to the marriage. Nonmonetary contributions may include activities like the following:
- Household chores, cooking, homemaking
- Taking care of children
- Supporting their spouse professionally
Does Delaware consider a spouse's economic misconduct in property division?
In Delaware, there are no laws requiring courts to consider economic misconduct (aka wasting marital assets) by either spouse when determing property division. In many other states, economic misconduct can result in a higher percentage of marital property awarded to the injured spouse.
Are a spouse's contributions to their partner's education considered in the state of Delaware?
Delaware has no statute requiring courts to consider a spouse's contributions to their partner's education or earning capacity when determining how to divide marital property.
Can a pre-nuptual agreement affect property division in Delaware?
A prenuptual agreement, or pre-nup, is a binding legal contract signed by both spouses prior to getting married in Delaware. A prenup containing a property division agreement can take precedence over Delaware's property division laws by establishing what is considered as separate vs marital property, as well as agreeing on how finances will be structured during the marriage and divided in the event of a divorce.
The existance of a valid prenuptual agreement can prevent a Delaware court from having full reign to determine how assets are divided between the spouses, and instead allow them to be divided in a way agreed to by both spouses prior to the event.
How can I enforce a property division order in Delaware?
A Delaware property division order is a court order issued by a court order issued by a judge, describing how property is to be divided between spouses following a divorce. A property division order is a binding legal obligation, and failure to comply with the terms in full by either spouse can result in being charged with contempt of court. If your spouse is not complying with a property division order, you can consult a family lawyer to discuss potential legal avenues.
Dower and Curtesy?
Dower and curtesy abolished (12§511)