Learn how Delaware judges divide property in divorce, what counts as marital vs. separate property, how it's valued, and how it gets split.
Each state has its own laws governing how marital property is divided at divorce. Delaware is an "equitable division" state, meaning property division must be fair, but not necessarily equal. If a divorcing couple can’t agree on how to split their property and debts, a judge will decide for them, weighing all relevant factors, including the length of the marriage and each spouse's age and earning capacity.
Marital Property and Separate Property in Delaware
The first step in dividing property is figuring out what counts as "marital property" and what counts as "separate property." Under Delaware law, there's a strong presumption that all property a couple acquires during marriage is marital property. This is true even if only one spouse's name is on the title, or if both spouses own it together in some form, such as joint tenancy, tenancy in common, or tenancy by the entirety.
Property is separate if one spouse owned it before marriage or got it during marriage through inheritance or as a gift. The one exception is gifts between spouses, which remain marital property. To prove that a gift or inheritance should stay separate, a spouse generally needs proof of sole title and sole maintenance, a gift tax return showing the gift was made to that spouse alone, a notarized document signed at the time the gift was given saying it was meant for one spouse only, or proof that the gift was placed in a trust for that spouse.
Separate property also includes:
- items bought with, or traded for, property one spouse owned before the marriage
- any increase in the value of property one spouse owned before the marriage, and
- property the couple agrees in writing to keep separate.
Separate and marital property can also be mixed together. This is called “commingling.” Sometimes couples do this on purpose, like when they combine savings to buy a house. Other times it happens by accident, just from not keeping accounts separate. For example, a bank account one spouse had before marriage can become marital property if the other spouse starts depositing money into it. Likewise, a house owned by only one spouse can become partly marital property if both spouses help pay the mortgage or other costs.
If spouses can't agree on what's separate and what's marital, a judge will decide. The judge may also decide whether the spouse who originally owned the property should be paid back for some or all of what got commingled.
(13 Del. Code tit. 13, § 1513 (2026).)
What Factors Do Judges Consider When Dividing Property in Delaware?
Once a judge has sorted out what's marital property, the next step is dividing it up. Delaware judges don't have to split things exactly down the middle. Instead, the law requires a division that is fair under the circumstances, which sometimes means one spouse ends up with more than the other.
If the couple can't negotiate a divorce settlement agreement, a judge will divide the property for them based on statutory factors, including:
- the length of the marriage and any prior marriages
- each spouse's age, health, and station in life
- each spouse's occupation, vocational skills, and employability
- each spouse's estate and the amount and sources of their income
- each spouse's liabilities, debts, and needs
- each spouse's opportunity to acquire capital assets and income in the future
- each spouse's contributions to acquiring, preserving, or growing the value of marital property, including contributions as a homemaker
- each spouse's role in any decrease in value or waste of marital property, and
- each spouse's overall economic circumstances.
A judge weighing these factors may also look at other things, such as the value of property either spouse has already set aside, whether the property award is meant to substitute for or add to alimony, and the tax impact of how the assets are split. If the couple has children, the judge can decide to award the family home, or the right to live there for a while, to whichever spouse the kids live with most of the time.
(13 Del. Code tit. 13, § 1513 (2026).)
How Is Property Valued in a Delaware Divorce?
After determining which property counts as marital, the couple or the judge will assign a monetary value to each item. Sometimes a couple can agree on values on their own, with or without a mediator or lawyers helping out. When they can't agree, the judge decides, since Delaware courts have the authority to divide and value marital property as part of an equitable division.
For everyday items like furniture, cars, or jewelry, couples can often agree on a fair market value. Some assets are trickier to value, like a family business or house, and might require a professional appraiser to set one. Retirement accounts and pensions can be the hardest assets to value and almost always need a certified public accountant (CPA) or an actuary to determine their present-day value.
Dividing the Property
Once everything has a value, the couple or the judge decides how to split it up. There are a few common methods:
- split up the assets (may require an equalizing payment if one spouse gets substantially more than the other)
- sell the property and split up the proceeds, or
- continue owning some property together (such as a family home or investment that's expected to grow).
The couple or the judge must also divide up all debt accrued during the marriage, including mortgages, car loans, and credit card debts, assigning each debt to one spouse or the other.
Family pets are treated differently from other property. If a companion animal is marital property, the judge won't divide it up like furniture. Instead, a judge must decide who keeps it based on the animal's well-being, each spouse's ability to care for it, and their bond with it.
(13 Del. Code tit. 13, § 1513 (2026).)
Getting Legal Help
Dividing property can get complicated—and contentious—quickly. A divorce lawyer can answer your questions and protect your rights.
If you can't afford an attorney, Delaware Courts Online Self-Help Center offers general information and guidance, including court-approved forms, for people representing themselves in family court. And Delaware Legal Help Link publishes free legal guides and a tool that points low-income Delaware residents to legal aid programs.
