In a Divorce, Distribution does not Always Mean Half

For those going through a divorce or even considering it, one’s thoughts can get heavy to say the very least. With every day comes another  What are we going to do about… scenario that takes up space in an individual’s head in between making breakfast, driving the kid’s to practice and any number of other daily rituals that, until recently, were very uncomplicated. Such is the case in terms of distribution of property. Very appropriately, those going through a divorce spend a lot of time thinking about marital assets, property and, yes, money. And they should!

Delaware is an “equitable distribution” state as it pertains to distribution of property for those getting divorced. It is important to note that equitable does not mean equal. The aim of the Court is to distribute marital assets in a manner that is fair to both parties. The Court is very clear on what it takes into consideration when making its decision:

In a proceeding for divorce or annulment, the Court shall, upon request of either party, equitably divide, distribute and assign the marital property between the parties without regard to marital misconduct, in such proportions as the Court deems just after considering all relevant factors including:

(1) The length of the marriage;
(2) Any prior marriage of the party;
(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties;
(4) Whether the property award is in lieu of or in addition to alimony;
(5) The opportunity of each for future acquisitions of capital assets and income;
(6) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker, husband, or wife;
(7) The value of the property set apart to each party;
(8) The economic circumstances of each party at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the party with whom any children of the marriage will live;
(9) Whether the property was acquired by gift, except those gifts excluded by paragraph (b)(1) of this section;
(10) The debts of the parties; and
(11) Tax consequences.

From a practical standpoint, it is generally best, if both parties allow, to negotiate a fair distribution. However, if it is necessary for the Court to render a decision on distribution, it will generally do so relatively swiftly. In Delaware, once the divorce decree has been issued, on party will be responsible for for producing a complete financial report including any requests for property division within 30 days. They other party will have 30 days in which to respond.

It is important to have a lawyer at times like these. Folks in the midst of a divorce often, naturally, think emotionally. It is not uncommon that agreements made “unofficially” are later rescinded in a courtroom. For these and countless other reasons, it is imperative that those seeking a divorce or parties who have been served with divorce papers seek the counsel of a seasoned family attorney.