Divorce Laws in Delaware

Even if you hire an attorney to represent you in a Delaware divorce, it’s critical for you to have a basic understanding of divorce laws.  By getting educated, you can take a proactive role in protecting yourself. As an added benefit, you’ll also keep your legal fees down.

Here’s what you need to know.

• Overview of Delaware Divorce Laws
• How is the Division of Property Handled?
• Retirement Plans and Pensions
• Dividing Bank Accounts
• What About Debts?
• Gifts and Inheritance
• Determining Alimony (Spousal Support)  
• How is Child Support Calculated?
• Figuring Out Child Custody
• More FAQs

The Basic Delaware Divorce Laws

Delaware is no-fault state, meaning that you do not need to cite specific reasons why you are getting a divorce.  You only need to cite irreconcilable differences in your petition for your case to move forward.

Marital assets and debts are divided according to equitable distribution.  This means after it’s decided which assets and debts in your marriage are separate and which ones belong to both of you, they will be divided in a fair and equitable manner, but not necessarily on a 50/50 basis.  A judge will take several factors into account before making a final ruling on who gets what.

Alimony may or may not be granted if a spouse requests it.  A judge will also look at several predetermined factors before deciding the amount and duration to be awarded if any.

Child support is a bit different.  The state uses the Income Shares method that looks at the parent’s overall income and then plugs that information into a formula, and along with other variables, will come up with an amount one parent will have to pay each month.  Child support generally lasts until a child turns 18, but there are some exceptions to this.

Child custody is often a contentious issue.  Courts prefer both parents are actively engaged in their children’s lives unless there are extenuating circumstances such as domestic violence or substance abuse.  Physical and legal custody will need to be established, along with a suitable parenting plan which is a detailed playbook of how and when each parent will interact with their children.

How is the Division of Property Handled?

Delaware is an equitable distribution state.  This mean property is dividing fairly and equitably, but not always on an equal 50/50 split.

You and your spouse can try to decide how to best divide marital property between yourselves.  If you can’t agree, a judge will step in and decide for you.

You get to keep your own non-marital property (separate property) which is defined as:

• Property acquired before marriage, including the increase in the value of such property
• Property acquired by gift (except for gifts from the spouse) or inheritance
• Property acquired in exchange for non-marital property, or
• Property determined to be non-marital by written agreement of the parties

Before equitable distribution can take place, it must be determined which property is separate and which property is marital and owned by both spouses.  After that, an accurate value must be affixed to each asset, so that a fair division can take place.

When dividing property, a judge must consider several factors, including:

• length of marriage
• any prior marriage
• each party’s age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities, and needs
• whether the property award is in lieu of or in addition to alimony
•  each party’s opportunity for future acquisition of assets and income
• each party’s contribution or dissipation in the acquisition, preservation, depreciation or appreciation of marital property, including the contribution of a party as homemaker, husband, or wife
• value of the property awarded to each party
• each party’s economic circumstances at the time the property division becomes effective, including the desirability of awarding the family home, or its use, to the party with child custody
• whether the property was acquired by spousal gift
• debts of the parties
• tax consequences

When separate property is commingled with marital property, it may become marital property, either intentionally or unintentionally.   For example, a house owned by one spouse can become partially marital property if both spouses pay the mortgage and other expenses.

Retirement Plans and Pensions

Vested pensions and 401k plans in Delaware and considered marital property.  Unvested pensions are also marital property, but until that asset has vested, the spouse under whom the pension is maintained has only an expectancy of interest in the pension.

Pensions and retirement accounts must also be valued before being divided.  This can be a complicated process.  It’s common to retain a certified divorce financial analyst, accountant, pension valuator, actuary, or business appraiser to reach an accurate figure.

After the value is determined, each retirement account is split according to the settlement agreement.  To do this, an attorney or a specialized firm must create a qualified domestic relations order, often referred to as a QDRO.

The QDRO details how the retirement account will be split.  It is submitted to the plan administrator and the court for approval.  A QDRO makes a spouse an alternate payee, and the account is divided according to the instructions in the document.

Dividing Bank Accounts

Like other marital assets, any bank accounts created during the course of the marriage are considered marital property.

If you have a separate bank account from before the marriage, and the assets are kept separate, you may be able to make the case that the funds in the account are your assets only.

Otherwise, funds in the account will be subject to the same equitable distribution rules as other marital assets.

What About Debts?

In Delaware, debts are treated the same way as assets in a divorce.  Debts acquired during the marriage will be divided fairly and equitably, but not always equally.

It is presumed that all debt acquired during the marriage is marital property, regardless of who’s name is assigned to a property or debt.

Like assets, debt values must also be established first.  Spouses can then decide how they are to be divided, or the courts will decide for them.

Regardless of who winds up legally responsible for a debt by the court, all debts incurred by both parties are always divided equally in the eyes of creditors.

If your name still appears on the debt, you are responsible for it, no matter what your agreement with your spouse or the court says.

Gifts and Inheritance

Inheritance and gifts are considered separate assets in Delaware, even if they are acquired during the marriage.  However, gifts from one spouse to the other are considered marital property.

When a divorce takes place, gifts and inheritances are not subject to a division of assets, unless they were commingled with marital assets or bank accounts during the marriage.

Determining Alimony (Spousal Support)

Alimony may be awarded in some divorces in Delaware.  Alimony orders must be “just” meaning it must be fair and reasonable after considering several factors, including:

• The spouse seeking it is dependent upon the other party for support

• The requesting spouse lacks sufficient property, including any award of marital property, to provide for his or her reasonable needs;

• The spouse is not able to be self-supporting through appropriate employment or should not be required to seek employment due to responsibilities as a child’s custodian

If it is determined that alimony should be awarded, then the court must decide the amount and duration.  Judges must use all relevant factors to determine the award, including:

• the financial resources of the party seeking alimony, including the property apportioned to him or her, and his or her ability to meet his or her reasonable needs independently

• the time and expense required to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment

•  the standard of living established during the marriage

•  the duration of the marriage

• the age, physical and emotional condition of the parties

• any financial or other contribution made by either party to the education, training, vocational skills, career, or earning capacity of the other party

• the ability of the other party to meet his or her needs while paying alimony

•  tax consequence

• whether either party has foregone or postponed economic, education, or other employment opportunities during the course of the marriage

• any other factor which the Court expressly finds appropriate

If you have been married less than 20 years, alimony may only be ordered for a period equal to half of the length of the marriage. If you have been married for 20 years or more there is no limit on the time you can collect alimony.

Spouses awarded alimony are under an ongoing obligation to make good faith efforts to seek vocational training and employment. This requirement can be waived in some cases, such as if the supported spouse has a severe and incapacitating physical or mental illness or disability, is too old, or if seeking training and employment would adversely affect any minor children who live with the supported spouse.

Unless the spouses reach a different agreement, a spouse’s duty to pay alimony generally ends when either spouse dies, or when the supported spouse remarries or cohabits with another person.

How is Child Support Calculated?

Delaware used the Delaware Child Support Formula to determine child support obligations.

These guidelines determine child support awards in most cases unless applying the guidelines would result in an unjust or inappropriate award.  Judges have the freedom to deviate from the guidelines.

The state’s child support formula is based on:

• Each parent is entitled to keep a minimum amount of income for their basic needs
• Each child’s basic needs are taken care of before the parents may retain any additional income
• If income is available after the primary needs of the parents and each child are met, then the child(ren) is (are) entitled to share in any additional income of the parents

A figure is primarily determined based on a parent’s net available income.  This is determined by taking the parent’s gross income and subtracting taxes, a self-support allowance, and other appropriate deductions.

The Delaware Division of Child Support Enforcement (DCSE) provides help and information in applying for child support and enforcement.  DCSE can enforce payments by implementing income withholding orders, lottery and tax refund intercepts, denying passports, or suspending a driver’s license.

The state has published a Child Support FAQ document you can view here.

Figuring Out Child Custody

When minor children are involved in a divorce one of the most heated issues is child custody.

Both legal and physical custody must be figured out.  Physical custody is with the place and parent where a child lives.  Legal custody is which parent is responsible for making the major decisions in a child’s life, such as medical decisions, church and school attendance and other important issues.

Courts prefer that you amicably reach agreement but will step in and decide for you if you disagree on the terms.  Decisions are always made in what are the best interests of the child, and will include several factors, such as:

• the wishes of the parties
• the wishes of the child
• the relationship of the child with parents, grandparents, siblings, and any other residents of the household or persons who may significantly affect the child’s best interests
• the child’s adjustment to home, school, and community
• the mental and physical health of all individuals involved
• compliance by both parents with their rights and responsibilities to the child
• evidence of domestic violence
• the criminal history of any party or any other resident of the household

The impact of substance abuse on custody

Substance abuse may place a child in danger and will have an impact on how custody issues are decided.  If abuse is present custody and visitation can be restricted to supervised interactions or completely revoked by the court.

Courts may require counseling for the affected parent before custody rights can be granted.  Custody orders can also be modified if a parent begins abusing drugs or alcohol after a divorce has been granted.

What role does domestic violence play in a divorce?

Domestic violence can put all family members in harm’s way.  If there is an immediate threat, you must protect you and your family members’ safety.  Call 911 and vacate your premises immediately if you need to do so.

You will need to petition the Family Court to seek assistance. A petition can also be filed on the victim’s behalf by Delaware’s Division of Child Protective Services or Division of Adult Protective Services.

As you work through your divorce, domestic violence will impact custody and visitation issues.  If there is a perceived danger to children, visitation can be limited or completely denied.

FAQs

How is adultery treated Delaware divorce laws?

Adultery can be cited as a form of marital misconduct when seeking a divorce.

What is a bifurcation of marital status, and how does it work?

Bifurcation means that a divorce is divided into two separate legal actions.  You can get divorced immediately while leaving unresolved issues to be dealt with at a later time.

Judges in Delaware are very reluctant to grant bifurcated divorces.  It creates judicial inefficiency and removes much of the immediacy of completing the divorce process.

What are the financial disclosure obligations?

You must disclose all your assets, income, debts and other financial obligations to your spouse and a Delaware court can equitably divide your marital assets and debts.

Spouses are sometimes tempted to hide assets, but judges take a dim view on this practice and may punish the guilty party in several possible ways.

What about health insurance during and after divorce?

If you are currently providing healthcare coverage for your spouse and children, you may be required to continue to do so until your divorce is complete.

At that time, health insurance for children will be part of the settlement agreement but coverage for a spouse will end in most cases.

Some settlements build in healthcare payments as part of alimony.  In those cases when that does not happen, the spouse without coverage will have to seek coverage through other means.  By law, employers are required to provide healthcare coverage through COBRA when an ex-spouse notifies a plan administrator within 60 days of the divorce.

A spouse can also shop on the state’s health insurance marketplace to find coverage.  Policies on the exchange may be more affordable.

Are there special rules and considerations for military divorces?

If you or your spouse are in the military, some parts of your divorce will be the same and some parts will be different in Delaware.  Federal protections give active members certain rights, including those contained in the Uniformed Services Former Spouses’ Protection Act (USFSPA) of 1982.

However, after you have been served, you can delay your response if your military service conflicts with handling your divorce.  This is a protection afforded under the Servicemembers Civil Relief Act.

Each branch of the military has legal assistance on most bases.  While they can’t represent a military member in a divorce, they can provide helpful assistance.  Spouses of service members may also seek help as well.

Non-military spouses can get health care coverage under TRICARE if they were married for least 20 years during the member’s active service.  This is often referred to as the 20/20/20 rule.  Lifetime TRICARE coverage is dependent on the former spouse remaining unmarried. If the former spouse remarries, they will lose TRICARE coverage permanently.

A military version of COBRA coverage is available.  It is called the Continued Health Care Benefit Program (CHCBP).  If the military member leaves the service, the former spouse who buys CHCBP is covered for 36 months after the date of divorce.  In some cases, this coverage can be extended for a longer period.

Military pensions can be shared by whatever means a judge thinks is fair.

It might be wise to consult with an attorney who specializes in military divorces since they can be a complicated blend of military and civilian rules.

What if my spouse does not respond to a divorce action?

In Delaware, your spouse has 20 days to file an Answer (response) after being served with paperwork.  If they choose not to respond, a judge can issue a default judgment in your favor.

Looking for more great tips about divorce?  Check out a few of our most popular articles.

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