Delaware does not have legal separation, but if you separate from your spouse, you may be worried about protecting your interests. This information may help you prevent problems in the event of separation and/or divorce.

Please note that this is general information only. I strongly advise against taking any action on the basis of this information without first consulting an attorney.

Quick Index:

Alimony

Bank Accounts

Child Support

Custody

Debts

Employment Benefits

Household Furnishings

Motor Vehicles

Real Estate

Settling Out of Court

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Real Estate

Your most valuable asset is probably your house. Usually, married people have both names on the deed, and neither person can sell the house alone. Even if your name is not on the deed, a house acquired during the marriage is usually marital property. If you move out, you do not lose your rights to the house. Also, you may receive some portion of the value of a home acquired prior to the marriage by your spouse.

Motor Vehicles

Your car is usually your second most valuable asset. You may have to pay your spouse a percentage of the current value of your car minus the loan balance.

Household Furnishings

Anything acquired during the marriage is generally (but not always) marital property, even if the item is titled in your name alone. Most household furnishings are divided by agreement. If you move out, it is useful to make an inventory of the household furnishings you are leaving. Don't take everything with you. Be reasonable!

Debts

Debts must be divided. Any debts incurred during the marriage are probably marital debts, regardless of whose name they are in. Keep your monthly credit card statements and canceled checks. When you separate, close all marital credit cards and open new accounts in your name.

Bank Accounts

If you and your spouse have joint bank accounts, either one of you can withdraw the funds. You might want to withdraw one-half of your deposits and put the money in another account in your name. Be reasonable and remember that you will have to account for the money later. Keep all bank statements and canceled checks.

Employment Benefits

Pensions and thrift plans or 401(k)s earned during the marriage are generally marital property and are divided. Thrift plans can be divided without incurring penalties or paying taxes. You will definitely need a lawyer to help you to divide employment benefits.

Alimony

Alimony is available for men and women, based upon your needs and your ability to meet your needs, as well as your spouse's needs and his or her ability to meet them. If you were married for fewer than 20 years, you can get alimony for no more than one-half of the duration of the marriage. For marriages longer than 20 years, there is no time limit. You cannot receive alimony if you cohabit or remarry, or after the death of either spouse.

Custody

Custody is determined by what is in the best interests of the children. The court does not favor one parent over another because of her or his sex. Fathers often get residential custody of their children.

Child Support

Delaware uses its "Melson Formula" to determine the child support obligation of the non-residential parent. The Formula uses the parents' incomes and the day care and/or tuition expenses for the children. (Tuition may or may not be included, depending on the circumstances.) If your spouse has the children with him or her, you should pay support even before an order is entered by the court, but get a receipt for cash or keep your canceled checks, so you can prove how much you have paid.

Settling out of Court

If you and former spouse can agree on any or all of these issues, you will not have to go to court for a trial. You should get a lawyer to write up your agreement. (One spouse must go to court for a very brief divorce hearing.)

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If you want to learn more about divorce and separation, you can make an appointment or e-mail me a question. Interesting questions will be answered in this web site, so others can read them. Naturally, your identity will be kept private and some facts may be altered to help hide your identity.

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Last posted: September 29, 1997
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