What You Need to Know about Divorce in Delaware
Most people know how to get married, but few know how to split. Here's how to navigate the divorce maze as smoothly as possible.
5 things you need to know about divorce in Delaware
1. In Delaware, spouses must be separated for six months before they can legally be divorced. Incompatibility and marital misconduct are the most commonly cited reasons for divorce, says Curtis Bounds, head of family law at Bayard in Wilmington. “Incompatibility can be rift—emotionally coming apart—or discord, which means fighting,” he says. Marital misconduct includes adultery and physical abuse, which are often contested. The result: a prolonging of an already painful process. That’s why Bounds recommends clients list incompatibility as the grounds for divorce.
2. Delaware Family Court puts a tight schedule on divorce settlements. After a divorce decree is issued, one party has 30 days to complete a financial report with requests for property division. The other party has 30 days to respond, says Kathryn Laffey of Kelleher & Laffey Family Law in Wilmington. Trial dates are scheduled automatically. “The court does that to encourage parties to settle before that date arrives,” Laffey says. “Going to trial costs clients more money and, generally speaking, creates more acrimony.”
3. Same-sex marriage is the law, but same-sex divorce is a bit sticky. Many couples celebrated Delaware’s 2012 civil union law by getting hitched, but many had been together for decades before that. “The longevity of the estate is not represented by the duration of the marriage,” says Jill Spevack DiSciullo of Morris James in Wilmington, so same-sex spouses should create premarital agreements that detail assets jointly owned before their marriage. In case of divorce, those agreements acknowledge both partners’ equity in the estate.
4. Contrary to the Hollywood version of divorce (hiring private detectives, shouting matches, threats, etc.), good divorce lawyers don’t create drama. “Is getting divorced an emotionally draining experience? Yes,” says Gretchen Knight of Morris James. “But my role is to understand the law and what it provides for my clients. Emotion doesn’t come to bear on property division and alimony. The settlements are a lot about the numbers and the value of assets, along with the factors considered under Delaware law in determining an equitable distribution.”
5. Mediation, in which divorcing spouses reach a settlement through one attorney, is becoming a popular choice among Delawareans. Laffey, a certified mediator, says that her clients employ mediation to avoid costs, litigation and family discord. Bounds supports mediation, with a caveat. “Legally, mediators are not allowed to advocate for either client, and I truly think each party needs separate advice on the law.” Knight agrees. “If you don’t have any idea of what divorce law says and you walk into mediation with a blank slate, it’s not clear what is a fair result.” Laffey does recommend clients consult with attorneys, especially in complicated cases.
Divorce financial planning 101
Delaware’s divorce economics has a few hard-and-fast rules. First, with some exceptions, marital property is anything acquired during the marriage, regardless of whose name is on the title, says Curtis Bounds, head of family law at Bayard in Wilmington. Second, alimony has a shelf life. For marriages of fewer than 20 years, alimony is awarded for half the length of the marriage. Alimony can last indefinitely for marriages of more than 20 years. In either case, alimony ends upon death, remarriage or cohabitation with another romantic partner.
Most people begin divorce proceedings thinking emotionally, not fiscally. That’s why financial adviser Arlene Wilson, vice president of Ameriprise in Wilmington, offers a ticker list of must-dos. First, gather information, including tax returns, for the past five years and details on investment accounts. “Unfortunately, divorce can bring out the worst in people, and even formerly honest spouses can attempt to hide assets,” she says. “Understand and document your total net worth and liabilities. Know what you own and what you owe.”
When dividing an estate, not all assets are equal. A house and a 401(k) may have equal value, but there are costs involved in maintaining a house, and there may be tax implications on a 401(k). On the other hand, an ex-spouse is entitled to half of a 401(k) if it was started during the marriage. But if one was established before the marriage, the ex-spouse is entitled only to a portion of its growth during the marriage.
It is equally important to assess marital debt, Wilson says. Some spouses may have secret debt—credit cards, loans, etc. In many cases, that is joint debt, so both parties are responsible for it. “Get a credit check immediately,” Wilson urges. Then start to establish a solid foundation for the future by getting a separate credit card and bank account.
To investigate all assets and debt, Knight often employs forensic accountants and other experts. Their jobs are to value business interests and real estate holdings, to analyze the dependency of a spouse and assess the need for alimony, and to review tax returns and other financial information. “The goal is to provide assurance that we’ve captured everything that is marital property,” Knight says. “It’s not always about suspecting foul play, but about being thorough.”
Take, for example, inheritance. “If during your marriage you inherit money and put it into a bank account in your name, it’s likely all yours,” she says. “But if you put that money into a joint account, you’ve turned it into marital property.”
Alimony and child support are decided without regard to morality, Bounds says. Adulterous spouses aren’t forced to pay more alimony. Delaware courts set alimony at a number that spouses can reasonably pay. “That said, there’s often tension between what’s necessary and what’s asked for,” Bounds says.
And there’s often financial messiness in same-sex divorces. If spouses can’t come to an agreement, courts may get involved. One of the common sticking points is determining premarital equity.
“If the parties owned real estate prior to the marriage, the division of that equity is resolved by the Chancery Court, not Family Court,” DiSciullo says. “Chancery Court proceedings may be more complicated and more expensive.” If ex-spouses must resort to the Court of Chancery, property must be sold through an auction—not a real estate agent—so the parties can lose a lot of equity.
One of the most surprising aspects of divorce is that, in most cases, marital misconduct has no bearing on child custody decisions. That is a tough pill for many parents to swallow. “The fact that your spouse was unfaithful or is subsequently involved with someone else does not disqualify them from shared custody,” Knight says. “There is no morality aspect to custody. Decisions are made without regard to fault, except in cases of domestic violence.”
If parents can’t agree on custody arrangements, courts decide it according to the Best Interests of Child Standard. The standard balances the wishes of parents; their interactions with the child, siblings and grandparents; the child’s adjustment to school and community; the mental and physical health of parents and children; past and present compliance with rights and responsibility to the children and each another; incidents of domestic violence; and parents’ criminal history.
Children’s wishes are also considered. In Delaware, judges can ask children older than 5 to decide which parent they want to live with. The specter of a “Kramer vs. Kramer” showdown often compels parents to reach a custody agreement. If not, trained therapists are called for child custody evaluations. Katherine Elder, a licensed psychologist with Delaware Psychological Services in Lewes, has conducted several. She meets with kids and parents to assess every aspect of their lives before she makes recommendations to judges.
Many judges still want to hear directly from the kids. “I’ve been involved in cases where children are allowed to submit their wishes in a letter to the judge,” Elder says. “Other judges have children come into the courtroom, but they get off the stand and talk with them. But you could wind up with a judge who insists on putting the kid on the stand.”
Avoid that by coming to an agreement. “One thing that helps is acknowledging that the other parent was a bad spouse but could be a good parent,” Knight suggests. “And try to decide if you’re doing what’s best for your kid or what’s best for you.”
How to co-parent
With a bit of conscious uncoupling, exes can be great co-parents. “Obviously, something went wrong in the marriage,” says Dawn Schatz, a licensed clinical social worker with Appoquinimink Counseling Services in Middletown. “But try to think of it as a business arrangement and focus solely on the kids.”
Plan Ahead: Schedule weekly co-parenting phone calls to make arrangements for the kids’ schedules. If talking is too tough, do it through email. “Plan the week ahead and talk about what’s coming up beyond that,” Schatz says. “That puts both of you on the same page and gives you a forum to share important information.”
There’s an App for That: Katherine Elder, a licensed psychologist with Delaware Psychological Services, suggests co-parenting apps like 2 Houses that allow exes to share kid-centric calendars. “If Jane has a school play, both parents can see it,” she says. “That eliminates communication between parents and makes it digital.”
House Rules: Bedtime routines, screen time and snacks are just a few things that may be different in different parents’ homes. Try not to criticize—or attempt to change—the other parent’s rules, Elder says. “If you see a problem behavior emerge, then respond,” she says.
No 20 Questions: Don’t ask the kids about the other parent’s new love interests. “When mom says, ‘Did Dad have anyone over? Did anyone go with you to the Phillies game?’ kids totally know what’s going on,” Schatz says. “Even well-intentioned parents want information. But it is very damaging to the children.”
Meet the Kids: There’s no hard rule about when kids should be introduced to their parents’ new love interests. But tell ex-spouses before you tell the kids. “’Daddy has a new girlfriend’ is tough information to hear from your kid,” Elder says.
Communication advice for marrieds
For those who decide they want to remain married, here are a few suggestions on how to do counseling right.
Love can be blind—and deaf: Good communication is the key to long, happy marriages and surviving the rough patches that arise along the way. To keep the love and communication alive, couples often need the help of professionals like Dawn Schatz, a licensed clinical social worker with Appoquinimink Counseling Services in Middletown, and Katherine Elder, a licensed psychologist with Delaware Psychological Services in Lewes.
If you need couseling, don’t wait: One counseling session isn’t going to solve every problem. “Some people come and say that they are trying therapy as a last resort,” Schatz says. “I wish couples came in earlier, at the first signs of discord. We can’t undo years in one or two sessions.”
Be good students: “If you’re not in therapy to do the work, you’re wasting time and money,” Schatz says. “I can teach, but you need to be good student. You have to be willing to listen, learn and change what isn’t working.”
Good times: When did the relationship work and why? What has changed? These are questions that Elder asks clients. “And it’s important to avoid constant criticism,” she says. “Use praising statements whenever possible.”
It takes two: Schatz tries to meet with each spouse privately to hear their storyies “But I’m not here to fix your husband or wife,” she says. “You have to be willing to look at your part in the dysfunctional behavior.”
Ask, don’t answer: Rather than making accusations, be curious with one another, Schatz suggests. “Saying, ‘I’m confused about why you do that’ softens the exchange. When we feel respected and heard, we can often work through it and not engage in battle.”
Consider parenting therapy: Different parenting styles can strain marriages, Elder says. Therapists can offer many good parenting techniques. Elder does parent-child interaction therapy, an evidence-based coaching program. Parents are observed playing with their kids and, through ear buds and walkie-talkies, Elder makes suggestions. “I may say, ‘Let your child know she’s doing good job playing with blocks,’ or ‘Don’t give too many commands.’”
What happens in counseling stays in counseling: While it’s true that therapy is a safe space, what’s said there can create long, silent rides home. That may cause one person to hold back real feelings. “But the minute you stop being honest, you lower the chances of successfully solving problems,” Schatz says.