In Delaware, property division is the process by which the Family Court decides how to separate and divide the assets and debt that a couple have accumulated during a marriage or civil union. Contrary to popular belief, Delaware is not a “50/50 State” and the Court may divide the marital assets and debts in any equitable manner. The following is intended to be a brief overview of the process for those considering divorce and its financial repercussions.
First, the couple must be divorced. In Delaware, property division only occurs after the parties are no longer married. For more information about Delaware divorce, see our page devoted to explaining the divorce process.
After the divorce has been granted, if property division has been requested, the Petitioner will be given a certain amount of time to complete a Rule 16(c) Financial Report. That report lists all of the assets, debts, savings, pension benefits, and other financial matters related to the marriage or civil union. After the Petitioner has completed their side of the financial report, the Respondent must do the same. The 16(c) serves as a guide for determining what assets and debts were part of the marriage.
After the 16(c) financial reports have been filed, the parties are permitted to seek “discovery” from the other side. Although the process is complicated, discovery is the time when each side requests more information, usually in the form of documents or other evidence about marital assets and debts. The parties may also wish to take the deposition (ask questions under oath) of the other party or another person with information about marital assets or debts.
After discovery is complete, in most cases, the parties are expected to meet, together with their attorneys, in a “four-way” meeting. In this meeting, the parties and their attorneys, attempt to come to a mutually-satisfactory agreement on as many issues as possible in the case. In many cases, the parties are able to reach complete agreement at this phase and the case ends.
If the parties have been unable to resolve the case at the four-way meeting, each spouse then completes a Rule 52(d) Ancillary Pretrial Stipulation. This document is completed much the same as the Rule 16(c) Financial Report and highlights areas where the parties agree and disagree. This document is presented to the Judge at the pretrial conference, where the Judge evaluates the 52(d) and enters as an agreement any issues on which the parties agree.
If there are remaining issues after the pretrial conference, the case goes to trial and a Judge decides, based on the law, how the property should be divided. Although every case is different, the Judge looks to a set of factors including the health, age, income, resources, education, and future likelihood of acquiring assets in determining how to divide the property. After the trial, the Judge issues a written decision, usually within 90 days of the trial. If either side is unhappy with the decision or believes the Judge wrongly applied the law, they may appeal within 30 days. If they do not appeal, that right is lost and the Judge’s decision stands.
The property division process—particularly discovery, depositions, and preparing a case for trial—is complex and requires significant time and energy to be done properly. The Family Court cannot provide you legal advice or guidance on how to protect your rights. The Family Law attorneys at Doroshow, Pasquale, Krawitz & Bhaya can represent you and ensure that your rights are protected and that your case is presented in a way that ensures you receive your fair share of the marital assets. Contact us today for a consultation.