In most family courtrooms, it’s more likely a judge will spend his or her days signing mutual divorce judgments than conducting long, contentious divorce trials. Sometimes, divorcing couples have the best intentions to create an agreement without asking the court for help, but negotiations stop when they reach the point where they must divide their marital property and assign marital debts.
In Delaware, if a couple can’t agree on the best way to divide their property, a judge will generally split the assets using a concept called equitable distribution. This means that a judge will divide the assets in a way that is fair, but that doesn’t necessarily mean equal.
Judges have a great deal of discretion when dividing property in a divorce and typically use the following steps:
- determine whether the property is marital or separate
- assign a value to the marital property, and
- decide how to divide the property.
Marital Property and Separate Property
The first step in the division process is for a judge to identify what items are marital property and what items are separate property. In most cases, marital property will include anything you acquired during your marriage, even if only one spouse’s name is on the title.
Some of the property one spouse owned prior to the marriage may qualify as marital property if you commingled or combined your assets. For example, separate property may be subject to the rules of equitable distribution if:
- either spouse used the property during the marriage
- the couple used marital funds to improve the property, or
- the property benefitted both spouses during the marriage.
So, if one spouse received a large inheritance before the marriage, but used the funds to pay for new windows in the marital home, a judge will consider these funds (and windows) part of the marital estate and won’t award the spouse the full value of the inheritance as separate property.
Judges do often find that one spouse may have and keep separate property during the marriage, which means it’s not subject to the standard equitable division rules. If a spouse previously owned the property and kept it isolated throughout the couple’s marriage, it will belong to the original owner.
A big part of property division is confirming how much an asset or property item is worth. Value is especially important in making sure both spouses receive a fair property settlement.
In today’s very internet driven world, it doesn’t take much effort to find what you are looking for online. So, if a couple needs to assess the value of their 2010 Ford 8N tractor, they can utilize websites like Craigslist.com, Facebook.com, or Autotrader.com to find an estimate of value depending on the age, condition, and style of the tractor.
If an item is an antique or collectible, it will likely require an expert assessment— in this case, the couple can pay for a professional appraisal.
How Will a Judge Divide Our Property?
After the judge and spouses agree on what assets are marital property, the next step is to divide it fairly. Some of the factors a judge in Delaware will consider include:
- each spouse’s contribution to the value of marital property
- the economic circumstances of each spouse
- the length of the marriage
- if the couple has children, the custodial parents’ needs to remain in the marital home with the children
- the couple’s age, health, amount and source of income, vocational skills, liabilities, and needs
- each spouse’s prospects for future employment
- whether any marital property acquired during the marriage was a gift
- whether a judge awards property instead of spousal support, and
- the tax consequences of any property award.
A judge can divide the assets by assigning certain items to each spouse, by allowing one spouse to “buy out” the other’s share of the property, or by asking the couple to sell the assets and divide the profit. Couples can also agree to continue owning property together after the divorce, but to be successful, couples must be able to communicate and work together. This type of arrangement won’t work for everyone, but for those who wish to keep the family home until the children graduate, it may work.
A couple’s marital estate isn’t restricted to just their assets, so a judge must also divide a couple’s marital debts before he or she finalizing the divorce. Some debt, such as a student loan, belongs only to the spouse that attended school. Other debts, like a mortgage or joint credit cards, are both spouse’s responsibility, and a judge will assign each spouse a portion of the debt.
Although courts hold a significant amount of power, even a judge can’t change the legal agreement between the couple and their creditors. So, if a judge assigns the joint Home Depot credit card to one spouse, it’s important to understand that Home Depot can still try to collect what’s owed from either spouse. Usually, a judge will add a provision in the judgment that requires the spouse to refinance the debt into their own name and will provide a deadline for the spouse to achieve this, or risk being in contempt of court.
To protect yourself, make sure your marital settlement agreement and/or divorce judgment contains a provision that allows you to get reimbursed if your ex-spouse fails to pay credit cards or other assigned debts and the lender comes after you for payment.