Delaware Divorce Property Division Guide

Delaware follows equitable distribution principles when dividing marital property in divorce. Under 13 Del. C. § 1513, Family Court judges divide property "without regard to marital misconduct," considering factors like marriage length, each spouse's contributions, and future financial prospects. Equitable doesn't mean equal—it means fair based on your specific circumstances. Whether you're pursuing an uncontested or contested divorce in Delaware, understanding property division is essential to protecting your financial future.

This guide explains Delaware's property division framework, the distinction between marital and non-marital assets, how courts apply statutory factors, and strategies to protect your interests—including Delaware's unique rules on companion animals and trust interests.

Understanding Equitable Distribution in Delaware

Delaware's equitable distribution system aims for fairness rather than mathematical equality. Courts have broad discretion to divide marital property based on what's just under the circumstances. This means:

• A 50/50 split is possible but not automatic
• Courts can order 60/40, 70/30, or any other ratio deemed fair
• Both spouses' contributions—financial and non-financial—are valued
• Future needs and earning capacity influence the division

The court may also impose liens on property, require execution of documents to transfer assets, and direct continued maintenance of life insurance with designated beneficiaries.

Marital Property vs. Separate Property

The first step in property division is determining what's actually divisible. Delaware law distinguishes between marital property (subject to division) and separate property (generally kept by the owning spouse).

Marital Property (Subject to Division)

• All property acquired during marriage: Real estate, vehicles, bank accounts, investments, and personal property accumulated while married
• Retirement contributions during marriage: The portion of pensions, 401(k)s, and IRAs earned during the marriage
• Business value accumulated during marriage: Growth in businesses during the marital period
• Jointly titled property: Property held in both names is presumed marital

Separate Property (Generally Not Divided)

• Premarital assets: Property owned before the marriage, if kept separate
• Gifts and inheritances: Property received by one spouse through gift, devise, or descent
• Property excluded by agreement: Assets protected by valid prenuptial or postnuptial agreements
• Property acquired in exchange for separate property: If you sell premarital assets and buy new property with the proceeds, the new property may remain separate
• Increases in value of premarital property: Passive appreciation of separate property generally remains separate

Special Rule: Jointly Titled Premarital Real Estate

Delaware has a specific rule for real property that one spouse owned before marriage but later titled jointly. Under § 1513, if premarital real estate is placed in joint names during the marriage, courts may still consider it as each party's separate property to the extent of their premarital contribution—unless clear evidence shows intent to make it fully marital.

Statutory Factors in Property Division

Delaware courts consider multiple factors when determining equitable distribution. While § 1513 doesn't enumerate factors as explicitly as some states, courts consistently weigh:

Marriage Characteristics

• Length of marriage: Longer marriages typically result in more equal divisions
• Standard of living: The lifestyle established during the marriage

Individual Circumstances

• Age and health: Physical and mental condition of each spouse
• Income and employability: Current earnings and future earning capacity
• Economic circumstances: Overall financial position of each party

Contribution Factors

• Contributions to acquisition: Each spouse's role in acquiring assets
• Homemaker contributions: Services as a homemaker are explicitly valued
• Contributions to the other's career: Support of education, training, or career development

Financial Considerations

• Debts and liabilities: Both marital and separate obligations
• Tax consequences: The tax impact of proposed property transfers
• Future acquisition opportunity: Each spouse's prospects for accumulating assets

Notably, Delaware divides property "without regard to marital misconduct"—meaning fault grounds like adultery don't directly affect property division, though they may characterize the divorce itself.

Automatic Preliminary Injunction

Delaware provides strong protection for marital assets through an automatic injunction that takes effect immediately upon filing (for the petitioner) and upon service (for the respondent). Under 13 Del. C. § 1509, both parties are automatically prohibited from:

• Transferring or disposing of property: No selling, giving away, or hiding assets except in the usual course of business or for necessities
• Extraordinary expenditures: Must be noticed and accounted for if made
• Molesting or disturbing the other spouse: Protection from harassment
• Removing children from Delaware: Cannot take children residing in Delaware out of state without consent or court order
• Incurring debt for which the other may be liable: Except for necessities
• Companion animal restrictions: Cannot transfer, encumber, conceal, or spay/neuter any companion animal without both parties' written consent

Violating the automatic injunction can result in contempt charges and significantly damage your credibility with the court—potentially affecting property division.

Delaware's Companion Animal Provisions

Delaware updated its property laws in 2023-2024 to specifically address companion animals in divorce. If the court finds a companion animal is marital property, it must:

• Award ownership to one spouse
• Consider the animal's well-being in making the determination
• May allocate responsibility for extraordinary expenses

This represents a shift from treating pets purely as property toward recognizing their unique status in family disputes.

Trust Interests in Delaware Divorces

Delaware's 2023-2024 updates also clarified treatment of trust interests. Under the updated § 1513:

• Third-party trusts: A spouse's beneficial interest in a trust created by someone else is generally not "property acquired" during the marriage
• Gifts in trust: Special rules apply to property received through trust distributions
• Discretionary trusts: Courts may consider but typically cannot divide discretionary trust interests

These provisions protect certain inherited wealth while still allowing courts to consider trust income when determining support obligations.

Financial Disclosure Requirements

Complete financial transparency is mandatory in Delaware divorces involving property division or alimony. After the divorce decree, parties requesting ancillary relief must exchange Rule 16(c) Financial Reports (Form 465):

• Timing: The requesting party must initiate and send the notarized report within 30 days after the divorce decree
• Response: The other party has 30 days to complete, file with the court, and serve a copy back
• Contents: Income, expenses, assets, liabilities, and supporting documentation
• Consequences: Failure to comply can result in sanctions, default on ancillary relief, or dismissal of claims

Courts rely heavily on these disclosures. Providing false or incomplete information can result in contempt and may affect the final property division.

Division of Specific Asset Types

The Family Home

Courts may handle the marital home in several ways:

• Award to one spouse: With an offsetting award to the other for their equity share
• Order sale: Divide proceeds according to the equitable distribution determination
• Exclusive use: Grant temporary exclusive use to one spouse (often with children) while the case is pending
• Buyout: Allow one spouse to purchase the other's interest

Retirement Accounts and Pensions

Retirement benefits earned during the marriage are marital property. Division typically requires a Qualified Domestic Relations Order (QDRO) for employer-sponsored plans. Courts commonly use the "coverture fraction"—years of marriage divided by total years of plan participation—to determine the marital portion.

Business Interests

Business valuation is often complex in Delaware divorces. Considerations include:

• Fair market value vs. investment value
• Marital vs. premarital appreciation
• Goodwill (enterprise and personal)
• The non-owner spouse's direct or indirect contributions
• Tax consequences of a hypothetical sale

Given Delaware's status as a corporate haven, complex business structures and stock options require careful analysis and often expert testimony.

How Debts Are Divided

Delaware courts divide marital debts using the same equitable principles applied to assets:

• Purpose: Was the debt incurred for marital benefit?
• Timing: Was it incurred during the marriage?
• Who incurred it: Which spouse took on the obligation?
• Ability to pay: Each spouse's financial capacity to service debt
• Related assets: Secured debts often follow the underlying asset

The automatic injunction prevents either spouse from incurring new debt for which the other might be liable, except for necessities.

Estimate Your Delaware Divorce Costs

Property division complexity significantly affects overall divorce costs. Delaware's ancillary matter fees are $90 per issue (property division, alimony, custody, support, visitation). Use our calculator to estimate total expenses based on your situation:

Property Division Is Final

Under Delaware law, property division is generally final once entered in the decree. Unlike alimony, which can be modified based on changed circumstances, property orders can only be reopened on grounds sufficient to vacate a judgment (similar to Rule 60 relief)—fraud, newly discovered evidence, or clerical errors.

This finality makes it essential to:

• Identify all assets before agreeing to a settlement
• Obtain accurate valuations for significant property
• Understand long-term implications of the proposed division
• Consider tax consequences carefully
• Request ancillary relief before the decree—or risk waiving it

The Property Division Process

In Delaware, property division is an "ancillary matter" handled alongside or after the divorce itself:

1. Request ancillary relief: In your petition or response, before the decree is entered
2. Divorce decree enters: The court may grant the divorce while reserving ancillary issues
3. Rule 16(c) process: Exchange financial reports within 30 days of decree
4. Pretrial conference: Court schedules conferences; may order mediation
5. Trial or settlement: Resolve property issues through agreement or court decision

If you don't request property division before the decree, you may lose the right to seek it later.

Practical Tips for Delaware Property Division

1. Request ancillary relief early: Include property division, alimony, and other requests in your initial pleading
2. Respect the automatic injunction: Don't transfer assets, incur debt, or make major financial moves without consent or court permission
3. Document separate property: Gather records showing what you owned before marriage and trace any commingling carefully
4. Complete the Rule 16(c) report thoroughly: Incomplete disclosures damage credibility and may result in sanctions
5. Consider tax consequences: A $100,000 retirement account has less after-tax value than $100,000 in savings
6. Get expert valuations: For businesses, real estate, and retirement benefits, professional appraisals strengthen your position
7. Plan for companion animals: If pets are important, document your relationship and be prepared to address their welfare
8. Remember finality: Property division is permanent—focus on long-term needs, not short-term emotions

Property Division in the Divorce Timeline

Delaware has no statutory waiting period after filing, but the 6-month separation requirement (for most cases) effectively creates one. Property division occurs as part of the ancillary process after or concurrent with the divorce itself. For the complete Delaware divorce timeline and filing checklist, see our detailed guides.

Key Takeaways for Delaware Property Division

Understanding Delaware's approach helps you protect your interests:

• Equitable distribution: Fair, not necessarily equal
• No fault in property division: Misconduct doesn't affect property allocation
• Automatic injunction: Protects assets from filing/service onward
• Companion animals: Delaware considers pet welfare in ownership decisions
• Trust interests: Third-party trusts often remain separate property
• Request relief early: Must be in pleadings before the decree
• Property division is final: Get it right during the divorce

For official forms and procedures, visit the Delaware Family Court Divorce Forms page. Given the complexity of equitable distribution and its permanent nature, consulting with a Delaware family law attorney is strongly recommended for divorces involving significant assets.