The giddy, hopeful lead-up to the big day is a time for the blissfully betrothed to consider pressing questions: Wedding band or DJ? Honeymoon in Aruba or Venice? What happens to my 401(k) if the marriage fails?
That third question, admittedly, tends to get skipped. “So many people, I think, don’t know when they get into a legal union what they are getting involved in,” notes Bonnie Egan Copeland, J.D., a family law attorney and partner at Copeland, Taylor, Harpell LLC.
It might not be romantic, but Delaware attorneys say taking steps to protect yourself legally is important for anyone contemplating getting into—or out of—a marriage.
In the First State, there were 2.3 divorces per 1,000 people in 2022, according to the Centers for Disease Control and Prevention. (The national average was 2.4.) While the details of each divorce are unique, negotiations generally revolve around two main issues: children and money.
When a divorcing couple have minor children, the court will decide on two types of custody: legal, the right to make decisions about the child; and physical, where the child will live. Delaware courts favor joint legal custody, though if parents can’t agree on a certain issue—such as education, religion, or medical treatment—one parent may be given the sole right to make those decisions.
The bottom line for custody decisions is what’s best for the child. Attorneys say parents can protect themselves by communicating with the other parent in writing as much as possible and by keeping detailed records of texts and email messages.
Copeland says subscription-based apps like OurFamilyWizard and TalkingParents are designed to help divorced co-parents share calendars and other information. In best-case scenarios, the apps ensure both parents stay organized, knowing when it’s their turn to pick the child up from school or take them to the dentist. In worst-case scenarios, they can make it easier to prove a parent is not following through with their responsibilities—or to refute false accusations.
In Delaware, legal issues related to splitting financial assets—whether in cash, real estate, retirement funds, brokerage accounts, or other forms—tend to be more complex than those around custodial rights. Attorneys say prenuptial agreements can be a smart choice for couples who come into the marriage with substantial assets or who have children or an interest in a family business.
“The thought is they don’t want to disrupt any of the estate planning that they have done and they want to make sure their children feel protected in the event of divorce but also in the event of death during marriage,” says Gretchen Knight, J.D., a family law attorney and partner at Morris James LLP.
When there is no prenup, Delaware courts divide marital property according to an “equitable distribution” standard, Knight explains. Unlike in a community property state, where spouses split marital property 50-50, Delaware judges have discretion to decide what’s fair, considering factors that range from the age and health of the spouses to the length of the marriage to each party’s access to other assets.
Marital property is defined as almost anything acquired—including debts—during the marriage. That definition gets murky after a couple has spent years together adding to their investments and bank accounts.
“To protect your pre-existing assets, keep records of what you had,” Copeland advises. “Fifteen years in, it’s hard to prove what you came in with.” She also urges awareness of an exception to the marital property rule: gifts and inheritances.
“I’ve seen people who get an inheritance and throw it into a joint account—don’t,” Copeland says. “If you get an inheritance, keep it in a separate account in your name.” As long as the money isn’t commingled with household funds, it remains the sole property of the recipient.
Along with dividing marital assets, the court may also order one spouse to continue supporting a financially dependent spouse. In Delaware, if the marriage lasted less than 20 years, alimony payments can continue up to half the length of the marriage. For marriages of 20 years or longer, the duration of the support is up to the court’s discretion.
The goal of alimony is to give the receiving spouse time to become financially independent, temporarily filling the gap between what they can generate on their own and reasonable living expenses.
Of course, “reasonable” is in the eye of the beholder; in divorce cases, that’s the judge. The amount of alimony is based on multiple factors, including standard of living during the marriage. Family law attorney Dana Reynolds of Law Offices of Dana Reynolds LLC says dependent spouses should go through their records, listing what the family has typically spent on everything from rent to haircuts.
“If they want alimony, the best thing they can do is start putting together their budget,” Reynolds explains. “It will make or break an alimony claim.”
Many Delaware divorces are resolved without the help of attorneys. For people who do decide to hire one, our attorneys say be sure to choose one who specializes in family law, preferably someone local, and who has the appropriate level of experience. This is particularly important when there are significant issues of misconduct with one of the parties, such as chronic lying, drug addiction, physical abuse, or any other issues that might affect a child’s safety, for example.
“If you have been married for a long time and there are many assets to be valued and divided, you will likely benefit from working with a lawyer who has more experience in handling complex and high net worth divorces,” Knight says. “If, on the other hand, it is a marriage of shorter duration with fewer and more typical assets, like houses, bank accounts, cars, and some retirement assets, you may not need the more experienced (and likely more expensive) lawyer.”
“Bedside manner” also counts, Reynolds adds. “My goal is to come in and be as kind and compassionate as possible. I try to remember that these are people who are going through one of the worst experiences of their life.”
At the same, her job is to set realistic expectations. “You don’t want an attorney who is going to tell you everything you want to hear.”
Related: 6 Reasons Why Businesses and Individuals Should Move to Delaware
