How Delaware Divides Marital Property in Divorce

A practical guide to classification, valuation, debt allocation, and equitable division under 13 Del. C. § 1513.

Short answer

Delaware follows equitable distribution. Family Court first decides what property and debt are marital, values the marital estate, and then divides it in proportions the Court considers just under 13 Del. C. § 1513. An equal division is possible, but Delaware law does not require a 50/50 result in every case.

Key Delaware and federal authorities

• 13 Del. C. § 1513, disposition of marital property

• 13 Del. C. § 1518(c), timing of other prayers for relief

• Delaware Family Court Civil Rules

What does equitable distribution mean in Delaware?

Equitable means fair under the statutory factors, not necessarily equal. The Court considers the entire economic picture rather than matching each asset dollar for dollar. A judge may divide the net marital estate equally, use a different percentage, or assign particular assets and debts to each spouse with an equalization payment.

Marital misconduct generally does not control property division. Economic conduct can matter, however. Section 1513 directs the Court to consider each spouse's contribution to the acquisition, preservation, depreciation, or appreciation of marital property, including dissipation. Spending marital funds for a nonmarital purpose near separation can therefore become relevant even though blame for the end of the marriage is not.

What property is marital property?

Section 1513 generally treats property acquired after the marriage as marital property, regardless of whose name appears on the title. Property acquired during the marriage is presumed marital unless the spouse claiming an exclusion proves that an exception applies.

• A home purchased during the marriage is usually marital even if only one spouse signed the deed.

• Wages, savings, investments, and retirement benefits earned during the marriage are generally marital to the extent earned during that period.

• Debts incurred for the household or the acquisition of marital property can be part of the marital balance sheet.

• Gifts from one spouse to the other during the marriage are treated as marital property under the statute.

• Jointly titled real estate acquired before marriage is treated as marital unless a valid agreement provides otherwise.

What property may be excluded?

The statutory exclusions include qualifying gifts or inheritances from third parties, property acquired in exchange for premarital property, property excluded by a valid agreement, and the increase in value of property acquired before marriage. The facts and documents matter. Retitling an asset, mixing funds, or using separate property to acquire jointly owned property can create tracing and classification disputes.

Example 1, inheritance kept separate: A spouse receives an inheritance, keeps it in an account titled only in that spouse's name, and can trace the funds. The inheritance may be excluded. If the funds are later used to buy a jointly titled marital home, the classification and any claim for a contribution credit require closer analysis.

Example 2, retirement account: A spouse had a 401(k) before marriage and continued contributing during the marriage. The premarital portion may be excluded, while contributions and investment results attributable to the marital portion are addressed in the division. Account statements and plan records are essential.

How does Family Court decide the percentage?

Section 1513 lists factors the Court must consider. No single factor automatically controls, and the Court may consider any other relevant circumstance. The principal statutory factors include:

• The length of the marriage and any prior marriages.

• Each spouse's age, health, station, income, vocational skills, employability, estate, liabilities, and needs.

• Whether the property award is in addition to or instead of alimony.

• Each spouse's opportunity to acquire assets and income in the future.

• Each spouse's economic and noneconomic contributions, including homemaking, child care, preservation of assets, and dissipation.

• The value of property set apart to each spouse and each spouse's economic circumstances when the division becomes effective.

• The desirability of allowing the spouse with whom children primarily live to remain in the family home for a reasonable period.

• The parties' debts, tax consequences, and qualifying gifts.

Property division is not a punishment system
Evidence about an affair, poor communication, or who asked for the divorce ordinarily does not change the property percentage. Evidence that marital money was concealed, wasted, transferred, or used for a nonmarital purpose can affect the accounting because it concerns the marital estate itself.

What is the usual property-division process?

1. Identify every asset and debt, including real estate, bank and investment accounts, retirement plans, businesses, vehicles, personal property, loans, and tax liabilities.

2. Classify each item as marital, nonmarital, or partly marital. The spouse claiming an exclusion should be prepared to trace the asset.

3. Select and prove a reliable value. Some assets require appraisals or expert evidence; others can be valued from current statements.

4. Address post-separation payments, reimbursements, sale proceeds, and claims that one spouse dissipated property.

5. Apply the statutory factors to the net estate and decide how each asset and debt will be assigned.

6. Prepare transfer documents, retirement orders, deeds, refinancing terms, and payment deadlines that make the division enforceable.

The Court may order a sale, award an asset to one spouse with an offset, divide an account, or require a monetary payment. Retirement plans may need a separate order acceptable to the plan administrator. A generic sentence in a divorce decree may not be enough to complete the transfer.

What documents should you gather?

• Statements showing balances near marriage, separation, divorce, and the current date.

• Deeds, settlement statements, mortgage records, appraisals, and home-equity loan statements.

• Retirement plan statements, pension estimates, plan descriptions, and beneficiary information.

• Business tax returns, ownership documents, financial statements, payroll records, and loan agreements.

• Credit-card and loan statements that show the purpose and timing of the debt.

• Documents tracing inheritances, gifts, premarital assets, and proceeds from excluded property.

• Proof of post-separation payments and the account from which each payment was made.

Do not wait until after the divorce decree
Property division is ancillary relief that should be requested and preserved in the divorce case. Family Court deadlines and the language retaining ancillary jurisdiction matter. A delay can jeopardize the ability to have the Court divide property later.

Frequently asked questions

Is everything split 50/50 in a Delaware divorce?

No. A 50/50 division may be equitable in a particular case, but the statute requires a just division after consideration of all relevant factors.

Does title determine whether an asset is marital?

Usually not. Property acquired after marriage is presumed marital regardless of title, subject to the statutory exceptions and proof tracing an excluded interest.

Can a spouse keep the house?

Possibly. The spouse must usually show a workable way to value the equity, account for the other spouse's share, and address the mortgage. A lender is not bound by a Family Court allocation of responsibility, so refinancing or sale terms often matter.

Are student loans or credit-card balances marital debt?

The answer depends on when the debt arose, why it was incurred, who benefited, and the overall equities. A debt is not automatically shared merely because it existed before the divorce.

Can the Court divide property located outside Delaware?

Family Court can account for out-of-state assets in the marital estate, but title transfers, jurisdiction, and enforcement may require additional documents or proceedings.

Related Delaware family law resources

• Maven Law property-division services

• Delaware post-separation credit guide

• Business valuation in a Delaware divorce

• Military retirement in a Delaware divorce

• Delaware alimony duration and modification

Talk with a Delaware divorce attorney
A complete property analysis starts with the documents, the timeline, and the goals for each asset. Contact Maven Law to discuss a Delaware divorce or ancillary property matter. Your legal experts & trusted advisors.

Legal information. General information about Delaware law as of the reviewed date; not legal advice and no attorney-client relationship. Law and case-specific facts can change the analysis.