Delaware Marital Property Laws

Delaware, like most states, is an equitable distribution state. All property acquired during the marriage becomes marital property. Delaware courts divide the marital assets and debts equally between the spouses during a divorce or legal separation. They may consider other factors for a fair division of marital property.

Property acquired before marriage is the separate property of each spouse. If the couple has a prenuptial agreement or other arrangement for the disposition of marital property, a judge will accept their agreement. Otherwise, Delaware law restores the separate property to each spouse and divides the marital property equitably.

Nine states have community property laws determining debt and property division in a divorce: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In these states, courts split marital property, or community property, 50/50 between the spouses. All other states use equitable division or the agreement of the parties.

FindLaw’s divorce and property section has more information on these topics.

Marital Property vs. Separate Property

According to Delaware Code Title 13 § 1513, marital property is all property acquired during the marriage. Separate property can become marital property through “commingling” if one spouse mixes their separate property with the marital property. It may be intentional, as when spouses combine assets to buy a house or other property. Or it may be accidental, as when spouses use one another’s bank accounts to pay household expenses.

Delaware divorce laws include vested and unvested retirement accounts and pension plans, investment portfolios, and IRAs and 401(k) plans in marital property. If the couple can’t divide these assets themselves, the court must do so for them.

In equitable division states, debt remains the property of whichever spouse acquired the debt, even during marriage, unless the couple acquired the debt to benefit the marriage. Each spouse keeps their own credit card debt.

Separate property is any property acquired before marriage or during marriage through the sale or trade of separate property. Delaware law also excludes the following items from marital property:

• Property acquired by gift, inheritance, or devise (gifts between spouses belong to the recipient spouse)
• Any increase in value of separate property owned before the marriage (Del. Code 13 § 1513(b)(1)(d))
• Property acquired after the marriage
• Personal injury awards are the separate property of the injured spouse

Delaware Marital Property Laws

Each state has its own laws on dividing property during the divorce process. Delaware family law judges review numerous factors to divide assets and liabilities equitably between spouses. The court attempts to keep the division as close to equal as possible but may consider these factors as well:

• Length of the marriage
• Any prior marriage of either party
• Age and health of the parties
• Employability and education, including vocational skills or time needed to acquire work skills
• Future earning capacity or opportunities
• Contribution or dissipation (waste) of the marital property during the marriage

Judges will not consider allegations of marital misconduct when dividing property. The spouse awarded primary custody of any minor children may receive the family home. The other spouse receives the value of the property through other means.

If one spouse requests alimony, the judge may change the marital property distribution to account for the alimony payments.

Related Resources for Marital Property Laws

Divorce cases are emotional and not a good time to learn about marital property laws. If you’re going through a divorce or want to protect your marital property rights with a premarital agreement, consult a Delaware divorce attorney.