Delaware Preserving Marital Assets Lawyer
Most people contemplating or going through a divorce seek retain as much of their property as possible. That property is divided into two classifications: marital and non-marital property. In Delaware marital property generally consists of property acquired during a marriage. Delaware divorce law requires the equitable sharing of all marital property. That means the court will examine a series of factors such as financial and domestic contributions, length of the marriage, and earning capacity, in determining how much marital property each party will retain.
However, Delaware law requires upon divorce that a party retain 100% of their non marital assets. Non marital assets are defined as property acquired via gift, inheritance, before the marriage, or protected under the terms of a valid agreement between the parties such as a premarital agreement. Establishing the non marital character of an asset in the midst of a divorce case is not a simple process and requires time, planning, and thoroughness.
One of the difficulties in establishing the non-marital character of an asset is the presumption under Delaware law which generally favors classifying assets as marital property. Thus, the party seeking to establish an asset as non marital has the burden of proving to a court that the property is non marital through the use of evidence, which typically will consist of testimony and documents, along with other demonstrative materials.
Another difficulty that can surface in connection with establishing a non marital asset occurs when the parties have a mixed or commingled non marital and marital funds. Delaware law has a complex series of tracing requirements to adequately demonstrate that an asset has retained its non marital character throughout the marriage. Tracing is a procedure used to follow the flow of money from its original source to demonstrate that the monies at issue are still non marital. This requires proof that the original source of the funds came from a gift, an inheritance, or pre-marital ownership.
For example, establishing the non marital character of an inheritance in Delaware requires obtaining estate planning documents, such as wills, trusts, gift tax returns and other documents typically admitted in probate proceeding that establish an inventory and value for a decedent’s estate. Once these records establish and demonstrate the original point in time when the inheritance was received, it is then necessary through tracing, to follow the money or asset to its current form to prove it has not been commingled with marital money. There are steps, however, one can take, even if a commingling has occurred, to try to preserve and protect what is one’s rightful non marital property. If there are adequate reasons for the commingling, such as estate planning or mere convenience, the funds may retain their original identify.
Discuss Your Case With An Experienced Delaware Preserving Marital Assets Attorney
Schedule your initial consultation today by calling 302-658-2834. The initial consultation fee is $450.00.