Or is it?Or is it?

Breaking up is Breaking up is Hard to DoHard to Do

Separate propertySeparate propertyMarital propertyMarital property

"Marital property" means all property "Marital property" means all property acquired by either party during the acquired by either party during the marriage marriage

““Separate property” means all Separate property” means all property acquired by an individual property acquired by an individual spouse brought into the marriage.spouse brought into the marriage. Includes property acquired during Includes property acquired during

marriage by bequest, devise or descent marriage by bequest, devise or descent or by gift to one spouse onlyor by gift to one spouse only

Who gets what?Who gets what?

Most states (DE) follow "equitable Most states (DE) follow "equitable distribution”distribution” Marital property divided Marital property divided fairlyfairly. .

Some states follow “community Some states follow “community property”property” All marital property divided All marital property divided equallyequally

Determining what’s fair: Determining what’s fair:

The length of the marriageThe length of the marriage Any prior marriage of the partyAny prior marriage of the party The age, health, amount and sources of income, The age, health, amount and sources of income,

vocational skills, employability of each of the partiesvocational skills, employability of each of the parties AlimonyAlimony The possibility of future income The possibility of future income Contributions of each party to the marital propertyContributions of each party to the marital property The value of the property set apart to each partyThe value of the property set apart to each party Desirability of awarding the family home or the right Desirability of awarding the family home or the right

to live therein for reasonable periods to the party with to live therein for reasonable periods to the party with whom any children of the marriage will livewhom any children of the marriage will live

Whether the property was acquired by giftWhether the property was acquired by gift The debts of the partiesThe debts of the parties

Types of SeparationTypes of Separation

Voluntary Separation: both spouses Voluntary Separation: both spouses agree as a trial period before divorce agree as a trial period before divorce (in DE, 6mos required)(in DE, 6mos required)

Desertion: one spouse leaves the Desertion: one spouse leaves the otherother

Forced by intolerable situation: Forced by intolerable situation: adultery, spouse abuse, substance adultery, spouse abuse, substance abuseabuse

AnnulmentAnnulment An annulment is a court order stating An annulment is a court order stating

that the marriage was not valid and that the marriage was not valid and therefore never existedtherefore never existed

Reasons for in DE:Reasons for in DE: Mental incapacity or infirmity, Mental incapacity or infirmity, Under influence of alcohol or drugsUnder influence of alcohol or drugs Physical incapacity to consummate the Physical incapacity to consummate the

marriage and the other party did not know marriage and the other party did not know Party was less than legal ageParty was less than legal age Fraud (already married, etc)Fraud (already married, etc) Married under duressMarried under duress IncestIncest

DivorceDivorce

The Court shall enter a decree of divorce The Court shall enter a decree of divorce whenever it finds that the marriage is whenever it finds that the marriage is irretrievably broken and that irretrievably broken and that reconciliation is improbable.reconciliation is improbable.

Irretrievably broken: Irretrievably broken: Voluntary separation (No fault)Voluntary separation (No fault) Separation caused by respondent's misconductSeparation caused by respondent's misconduct Separation caused by respondent's mental Separation caused by respondent's mental

illnessillness Separation caused by incompatibility.Separation caused by incompatibility.

Court or Mediation?Court or Mediation?

Uncontested Divorce: issues of Uncontested Divorce: issues of property distribution, child custody, property distribution, child custody, etc. resolved outside of court; usually etc. resolved outside of court; usually through mediationthrough mediation

Contested Divorce: the court must Contested Divorce: the court must resolve one or more unresolved resolve one or more unresolved separation issues; usually time-separation issues; usually time-consuming and expensive!!consuming and expensive!!

Counseling?Counseling?

In DE:In DE: Counseling is recommended but not Counseling is recommended but not

required in contested casesrequired in contested cases Parties are required to attend parent Parties are required to attend parent

classes if they have childrenclasses if they have children

Spousal Support (alimony)Spousal Support (alimony) The alimony order does not regard marital The alimony order does not regard marital

misconductmisconduct Not all cases involve support from one Not all cases involve support from one

spouse to the otherspouse to the other Factors:Factors:

The financial resources of the party seeking alimony The financial resources of the party seeking alimony (time and money for training and job-seeking)(time and money for training and job-seeking)

The standard of living established during the marriage; The standard of living established during the marriage; length of marriagelength of marriage

The age, physical and emotional condition of both partiesThe age, physical and emotional condition of both parties Any contribution made to the education, training, Any contribution made to the education, training,

vocational skills, career or earning capacity of the other vocational skills, career or earning capacity of the other party party

The ability of the paying party to meet his or her own The ability of the paying party to meet his or her own needs needs

Whether either party has foregone economic, education Whether either party has foregone economic, education or other employment opportunities during marriageor other employment opportunities during marriage