Once a divorce is final, the court can retain jurisdiction over marital property. When people are thinking about divorce or filing for divorce, they want to know, “How does Delaware deal with the division of marital property?” Many folks think it has to be 50/50, and that simply isn’t the case. Delaware law is for an equitable division of property. Delaware will split assets and debt as it deems fair and just. Therefore, they will look at a number of factors.
The Court will first decide what property is marital and what is separate property. In Delaware, it is presumed that all property and debt acquired during the marriage is marital property, regardless of who’s name is assigned to a property or debt. Separate property is assigned to things that were acquired before a marriage or gifted to a sole recipient during the marriage. To prove separate property, a spouse must show documentation that demonstrates separate property, which can range from a notarized document or a gift tax return. In some cases, couples will enter a marriage with a prenuptial agreement, documenting separate property, agreeing to the division of property should the marriage end. Most property acquired during marriage, unless agreed upon through documents, will fall under the marital property status.
The court or the couple will take all marital property and debt and assign a monetary value to them. Marital property must be assigned a monetary value to the property in order to divide it in an equitable fashion. Once value is assigned, the court will examine many factors that will lead to a decision.
They will examine factors like income, other property that the individuals own, tax consequences. Ordinarily there is a division of percentages. You might see the marital property divided 50/50, 60/40, 70/30, or 55/45, depending on all of the factors that the court is going to examine. Some more factors Courts will examine include:
- Age and health of couple
- Income of each party
- Property acquired during the marriage
- The ability to earn future income.
The Courts may also look at factors including prior marriages, each party’s impact to the increase or decrease of property, acquisition and preservation of property, desire to hold the family home, any party’s contribution to the other’s financial success, or if either party deferred goals and potential financial gain for the other’s success. Judges will want documentation for any contested issues.
Pensions and retirement may be a concern to the parties involved in a divorce case. In Delaware, vested and unvested pensions fall under marital property. A vested pension is when all the requirements are met to receive that pension. Pensions will fall under the same guidelines as other marital property; it will be assigned value and divided equitably.
Generally, the court wants the divorcing couple to agree to the division of property, but sometimes items falling under marital property, or circumstances for adjustments, will be contested. Besides the recommended representation, other experts may be called to examine or testify on behalf of contested issues and will add to the cost of the process. Keeping court costs down is something to consider. Consult an experienced attorney. They will not only protect you, they will guide you through this complicated, emotional procedure. Contact one of our experienced attorneys at Mattleman, Weinroth & Miller, P.C. to discuss your property distribution.