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How will your property be divided during divorce?

A divorce splits up your family, but it also divides your assets. Once an individual overcomes the shock of ending their marriage, they may worry about their property and financial security. Who will keep the house, what happens to your family car, your spouse's credit card debt or your inherited antiques?

Delaware is an equitable distribution state. This means that a judge decides how to fairly divide assets and debts. Assets are not automatically split 50/50 between you and your spouse. Instead, the courts take a number of factors into account to determine a fair split. How do the courts decide how to divide property?

Is any of your property protected from division?

The courts only divide marital assets and debts. Any separate property is not included in the division process.

Property is considered separate if it was:

  • Acquired prior to marriage
  • A gift
  • Inheritance money or property
  • Pension funds
  • Court awarded money

What factors does the court take into account when determining an equitable split?

Since property division is up to a judge's discretion, it is impossible to calculate what each spouse will receive. However, the court evaluates certain consistent variables when determining their settlement.

The judge evaluates each spouse's:

  • Relative fault in the divorce
  • Educational background
  • Potential earning capabilities
  • Physical and mental health
  • Age and time until retirement
  • Anticipated inheritance
  • Involvement/invested resources in raising children

Do you have to have a court determine your property division?

If divorcing spouses are able to privately agree upon a property division arrangement, they do not need to take the issue before a judge. However, it can be very difficult for divorcing couples to determine a fair settlement that both parties are happy with.

An attorney can help couples work through the property division process. A lawyer can ensure that all assets are examined, fairly valued and fight for your best interests in court. The divorce process is emotionally draining and you should not have to go through it alone. Contact an attorney if you are considering a divorce and have questions about what to expect from the process.

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