Protecting Separate Property in Delaware

Delaware is an equitable distribution state with a distinctive feature: appreciation on premarital property is always separate—regardless of whether it was "active" or "passive." Under 13 Del. C. § 1513, courts exclude the increase in value of premarital property from the marital estate. But the date of divorce—not separation—controls what's marital. Whether you're navigating an uncontested or contested divorce, understanding Delaware's unique property rules is essential.

Delaware's Statutory Exclusions Under § 1513

Delaware law explicitly excludes certain property from the marital estate:

• Third-party gifts and inheritances: Property received by gift, bequest, or descent to one spouse is excluded if properly documented
• Premarital property: Assets owned before marriage remain separate
• Exchange property: Property acquired in exchange for premarital assets stays separate
• Increase in premarital value: All appreciation on premarital property is excluded—Delaware's bright-line rule

The key difference from most states: Delaware doesn't distinguish between "active" and "passive" appreciation. All premarital appreciation stays separate.

The Bright-Line Appreciation Rule (Lynam v. Gallagher)

Under § 1513(b)(1)(d), Delaware excludes "the increase in value of property acquired prior to the marriage" from marital property:

• No active/passive test: Unlike most states, Delaware doesn't reclassify appreciation based on marital effort
• Lynam confirmation: The Supreme Court held that stock dividends on premarital shares are excluded—they're just "increase in value"
• Marital contributions recognized differently: Courts use equitable credits and unequal division, not reclassification

Example: You owned a $200,000 investment portfolio before marriage that grew to $400,000 during the marriage through market gains and reinvested dividends. The entire $400,000 remains your separate property—even if you actively managed it.

Date of Divorce—Not Separation—Controls (King v. Howard)

A critical difference from many states: Delaware uses the divorce date as the cutoff for marital property:

• King v. Howard (2017): The Supreme Court confirmed that the date of divorce—not separation—controls what's marital
• Post-separation earnings are marital: Bonuses, income, and property acquired after separation but before divorce are marital
• Valuation date is flexible: Courts may value assets at divorce, separation, or hearing—but identity is fixed by divorce date

This means income and bonuses you receive between separation and the final divorce decree are part of the marital estate.

The Clear and Convincing Evidence Standard

Delaware places a high burden on proving separate property:

• Marital presumption: All property acquired after marriage is presumptively marital (§ 1513(c))
• Clark v. Clark standard: You must prove a § 1513(b) exclusion by "clear and convincing evidence"
• Documentation is critical: Account statements, titling records, gift letters, and gift tax returns

Estimate Your Delaware Divorce Costs

Property classification disputes involving tracing and the clear-and-convincing standard can increase legal costs. Use our calculator to estimate your total expenses:

Joint Titling and Interspousal Gifts

Delaware has specific rules about how separate property becomes marital:

• Joint titling shows intent: Under Husband T.N.S. v. Wife A.M.S., retitling separate property into joint names can evidence intent to make it marital
• Interspousal gifts are marital: Unlike many states, § 1513(c) explicitly makes outright gifts between spouses marital property
• Pre-marriage joint real property: § 1513(b)(2) makes jointly-titled real property acquired before marriage into marital property

Critical warning: If you owned a house before marriage and added your spouse to the title, or if you gave your spouse jewelry during the marriage, these are marital property—not gifts that stay with the recipient.

Protection Strategies

• Keep title separate: Never add your spouse to title on premarital property
• Maintain separate accounts: Don't commingle marital and premarital funds
• Document everything: Keep account statements, gift letters, and inheritance documentation
• Act quickly: Since divorce date controls, file promptly to limit post-separation accumulation in the marital estate
• Get appraisals: Document values at marriage and at key dates for tracing purposes
• Consider prenuptial agreements: § 1513(b)(1)(c) recognizes valid agreement exclusions

Key Takeaways

• All premarital appreciation stays separate: Delaware's bright-line rule excludes all appreciation—no active/passive test
• Divorce date controls identity: Not separation—King v. Howard confirms
• Clear and convincing proof required: High standard to rebut the marital presumption
• Joint titling creates marital property: Intent to gift inferred from adding spouse to title
• Interspousal gifts are marital: Outright gifts between spouses don't stay with the recipient
• Valuation date is flexible: Courts choose divorce, separation, or hearing date for valuation

For the complete Delaware marital property guide and divorce timeline, see our detailed resources. For official forms, visit the Delaware Courts Divorce Forms page.