Divorce is a complex and emotional process, and one of the most challenging aspects is the division of property. Throughout a marriage, a couple tends to accumulate a lot of property which then needs to be divided if they make the difficult decision to divorce. Deciding how to divide property and debts can be one of the most contentious points in a divorce. While, conversationally, property is generally seen as something a person physically owns, it has a broader meaning in Delaware divorce law. While property does include physical items like a house, a car, furniture, and similar tangible goods, it can also refer to non-physical items. This includes things like bank accounts, retirement accounts, pensions, insurance policies, stocks, and more. While it might seem counter-intuitive, when it comes to divorce law, a debt is also considered property. Legally speaking, while a debt is something you owe, it’s also something you own. This can include mortgages, student loans, car loans, personal loans, and the like.
When a couple begins the divorce process, they are asked to attempt to agree on many of the key issues before the case reaches a judge. These decisions include alimony, child custody, child support, and the division of property. If the divorcing couple can come to an agreement on how their property is to be divided, the court will almost always honor that agreement so long as it is fair to both parties. However, it is fairly common that a divorcing couple can’t agree on certain major decisions such as the division of property. In those cases, the court steps in and decides what property should be allocated to each spouse. Understanding how property is divided in a Delaware divorce can help individuals navigate this complex and intricate terrain and make informed decisions.
Delaware Follows an Equitable Distribution Model in Property Division
The first step in property division under any distribution model is to determine what is marital property and what is separate property. Before delving into the division process, it’s essential to understand the distinction between marital property and separate property. Generally, anything each spouse owned individually before the marriage, that was not used for the benefit of both spouses in the marriage, is separate property. Anything that the spouses acquired during the marriage, however, is almost always marital property. There are a few exceptions to this rule, including inheritance and gifts made specifically to one spouse during the duration of the marriage, which is deemed separate property.
Most states fall into one of two models when it comes to dividing property in a divorce. The first model is called community property, and 9 states follow this method of property division. States that follow a community property model almost always split community property assets evenly between the spouses, in a 50/50 split.
Delaware, however, is not a community property state, and is one of the 41 states that follows the equitable distribution model. Equitable distribution, in short, divides property fairly, but not necessarily equally. This model strives for equity over equality, allocating property where it is needed and not aimlessly splitting it down the middle. Delaware courts consider many factors in deciding how to divide property fairly, including:
- The duration of the marriage,
- The current and future financial circumstances of each spouse,
- The standard of living that the couple maintained during the marriage,
- Contributions to the marriage, both financial and non-financial,
- Contributions to education or career advancement,
- Income and earning potential,
- Level of education,
- Age and health,
- The lifestyle that a custodial parent would need to maintain for any children,
- The value of any separate property,
- The type and value of the property being divided,
- Any special medical needs, and
- Any waste of money or property.
Contact an Experienced Delaware Divorce Attorney
The experienced divorce law team at Schmittinger & Rodriguez understands that the decision to divorce isn’t one made lightly. It is undoubtedly one of the most stressful times in a person’s life. That’s why it is our mission to deliver responsive, reliable, and relentless representation to our clients. We know that every divorce is unique, so we will personally tailor our services to fit your unique circumstances, needs, and goals. With 62 years of combined experience and over 45,000 clients served, our team is ready to start advocating for you today. Contact us for a consultation!