Navigating the Separation of Assets in Divorce
Separation and divorce are some of the most stressful life events, and there can be anger or resentment when a marriage ends. If there are children involved, emotions can become even more complicated and heightened. However, sometimes divorce is a necessary step to ensure happiness or personal safety.
No-fault divorces are common in Delaware. In this kind of divorce, neither you nor your spouse needs to prove that the other was responsible for your divorce. Either you or your spouse needs to have lived in Delaware for at least six months, and you must be separated for a minimum of six months before you can file for divorce.
A key part of divorce proceedings is determining how marital assets will be divided between the spouses. If you are getting a divorce in Delaware, this guide will help you navigate splitting your assets.
What Is Equitable Distribution?
In divorce proceedings, property distribution is often a major concern. If you are divorcing your spouse, how will your marital assets be divided? Will you receive a fair amount of your combined assets? Unless you and your spouse can agree to how the property should be divided, a court will decide how your property is distributed.
Delaware is an equitable distribution state, which means your property will be divided equitably between you and your spouse. With equitable distribution, the aim of the court is to divide your property fairly, not necessarily equally.
What Is Considered Marital Property in Delaware?
The separation of assets in Delaware applies only to property that is considered marital property. Marital property is the property you and your spouse acquired during your marriage, and it doesn’t matter who holds the property title. However, there are some exceptions to what types of property acquired during the marriage are considered marital assets, and your separate property will not be divided in the divorce.
What Is Considered Separate Property?
You and your spouse both retain your rights to separate property. Separate property is not necessarily determined by who holds the title. Though the title can be evidence of separate property, it alone doesn’t determine whether a property is a marital asset or a separate asset.
Separate property includes the property that either you or your spouse owned prior to the marriage and certain types of property that you acquired while married, such as:
- Personal injury settlements
- Gifts received individually from someone other than your spouse
- Inheritance received individually from someone other than your spouse
- Separate property as specified in a prenuptial agreement or similar contract
How assets in a Delaware divorce are divided can have a significant impact on your finances and future. To ensure your marital assets are divided fairly, you may want to work with an experienced family law attorney.
10 Factors Considered by the Court
The court will weigh each of your contributions to the marriage and what you and your spouse may need to move forward following your divorce. Though marital misconduct will not be considered, the court will use several other factors to determine equitable distribution during your divorce:
- Length of marriage: One of the first factors considered when splitting assets in a divorce is the length of the marriage.
- Marriage history: The court may also consider whether either you or your spouse has been married before.
- Age and health of spouse: How old and healthy your spouse is could be a factor in how your assets are divided. If a spouse has greater needs due to poor health, they may receive more assets. Along with physical health, the court may also consider emotional health.
- Sources of income: How much you and your spouse make will also be considered, along with your earning power and financial condition. If you delayed pursuing your career goals to focus on your marriage, this may also factor into the equitable distribution.
- Skills and employability: Skills and employability will be considered, as these can influence your potential to acquire income and capital assets in the future. If you have lower economic prospects than your spouse, for example, you may receive a greater percentage of your estate.
- Liabilities and needs: You and your spouse’s liabilities and future financial needs will be weighed when dividing marital property. If you receive custody of your children, you may be given a higher percentage of your marital assets or awarded pieces of marital property, such as the family home.
- Alimony: If there will be alimony, this could impact the property award you or your spouse receive.
- Contribution to assets: Along with acquiring assets, your contribution and your spouse’s contribution to your assets will also be considered. For example, whether you or your spouse is a homemaker, husband or wife will be weighed. Nonmonetary contributions to a marriage may include homemaking, cooking, household chores, childcare and supporting your spouse professionally. Nonmonetary contributions may be grounds for awarding you or your spouse a larger percentage of the marital assets.
- Debts of each party: Assets are not the only property weighed in a divorce. Your debts and your spouse’s debts will also be considered.
- Tax consequences: Finally, the tax consequences of a potential distribution will also be considered by the court.
The court may consider all these factors to determine how your marital assets should be equitably divided. The judge will determine how much weight is given to any particular factor, though the greatest weight tends to be placed on the marital lifestyle and the duration of the marriage.
If you want to minimize the stress of your divorce proceedings and ensure you get the share of marital assets you deserve, turn to an experienced divorce attorney.
Contact Us to Learn More About Dividing Assets
Our firm has been helping clients navigate the legal process of divorce in Delaware for decades. Our attorneys are confident and knowledgeable, and our practice is client-focused. We represent your interests in researching, negotiating and litigating legal issues. We also take the time to listen to your concerns, discuss your situation and educate you on the law, the legal procedure and why we recommend a certain course of action.
We will carefully analyze your legal problems, the law and the options that may be available to you. We will let you know about your rights and offer advice on which choices we recommend and the possible outcomes of those choices. Through every step of the process, we will keep you informed. Contact us today to discuss your legal needs during a divorce.