Laws governing how marital property is divided at divorce vary from state to state. Delaware law requires a division that is equitable, meaning that it must be fair but it doesn't necessarily have to be equal. If a divorcing couple can’t agree on how to divide property and debts, a judge will decide, taking into account all relevant factors, including each spouse’s:
Other factors a judge may consider include the length of the marriage; the value of property set aside for each spouse; whether a spouse is also receiving alimony or spousal support; the desirability of awarding the family home, or the right to live in the home for reasonable periods, to the spouse the children live with most of the time; whether any property was a gift, even if the spouse who received the gift doesn’t produce proof that it is separate property; and any tax consequences of the property division.
The first step in the division process is deciding what property is marital and what is separate. Delaware law includes a strong presumption that all property a couple acquires during marriage is marital property, regardless of whether one spouse holds title to the property individually or both hold title in some form of co-ownership—such as joint tenancy, tenancy in common or tenancy by the entirety.
Property is separate if one spouse owned it before marriage or acquired it during marriage by inheritance or gift—not including gifts from the other spouse, which remain marital property. A spouse claiming separate property must produce proof of sole title and sole maintenance; a gift tax return; or a notarized document executed before or at the same time as the transfer.
Separate property also includes:
Marital and separate property can be mixed together—sometimes called “commingling.” Some couples combine their separate assets intentionally; sometimes it happens because of simply not paying attention. A premarital bank account belonging to one spouse can become marital property if the other spouse makes deposits to it; a house owned by one spouse alone can become partially marital property if both spouses pay the mortgage and other expenses.
If the spouses aren’t able to decide what belongs to whom, the judge will have to decide whether the original owner should be reimbursed in whole or in part for any of the commingled property. These situations can be very complicated and may require the assistance of an attorney.
After determining which property is marital property, the couple, or the court, will assign a monetary value to each item. Couples who need help determining values can hire professional appraisers. Some financial assets, such as retirement accounts, can be very difficult to evaluate and may require the assistance of a financial professional, such as a C.P.A. or an actuary.
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.