Selling a house during a Delaware divorce
In a Delaware divorce the house tends to be the biggest asset a couple shares, and the hardest to split, because you cannot hand half a kitchen to each person. Family Court can divide it, order it sold, or award it to one spouse, and the two of you can settle it yourselves first. This page explains the Delaware rules, the court in each county, and the realistic choices.
The rule that matters: the deed does not decideDelaware law starts from the presumption that anything bought by either spouse after the wedding is marital, whatever the title says, and that includes houses held as tenants by the entirety (13 Del. C. § 1513(c)). Moving out does not give up your share, and having your name alone on the deed does not make the house yours alone.
How Delaware divides a house in a divorce
Family Court handles every Delaware divorce, and it divides property only when one spouse asks it to. Most couples work out the house in a written agreement, often with lawyers or a mediator, and the court adopts it. When they cannot, the judge divides the marital property between them in whatever proportions the court finds just.
The statute lists what the judge must weigh: how long the marriage lasted, each spouse’s age, health, income, skills and debts, whether the property award replaces alimony, each person’s chance to build savings in the future, contributions to the household (homemaking counts), any dissipation of assets, and the tax consequences. One factor speaks to the house directly: the court may consider awarding the family home, or the right to live there for a reasonable time, to the parent with whom the children will live.
Fault is off the table. Delaware divides property without regard to marital misconduct, so an affair or a bad temper does not move the numbers. What moves them is money: who paid for what, what each person can earn, and what the house is worth after the mortgage.
Some property stays out of the pot. An inheritance or a gift held in one spouse’s name, something swapped for property owned before the marriage, and the growth in value of premarital property are excluded. But a house the couple owned jointly before the wedding counts as marital. Because these rules turn on dates and titles, a family law attorney should look at the deed before you assume anything.
Where the house fits in the divorce timeline
The statute fixes the residency and separation periods. How long the property case takes depends on whether you agree and on the court’s calendar.
- Before filing
Six months in Delaware
One spouse has lived here, or been stationed here in the military, for at least six months (§ 1504).
- Day 0
Petition in Family Court
Filed in the county where the case belongs; the house stays jointly owned in the meantime.
- Six months or more
Separation
Living apart for six months before the court rules, which can be under one roof in separate bedrooms (§ 1503).
- On request
Property division
Either spouse asks the court to divide marital property, or you file an agreement that settles it.
- After the order
Deed or sale
One spouse deeds the house to the other, or both sign a sale. The court can have its Clerk sign for a spouse who refuses (§ 1513(f)).
- Settlement day
Payoffs and split
A Delaware attorney pays off the mortgage and liens and divides the net as your agreement or the order directs.
Family Court in each county
| County | Courthouse | Phone |
|---|---|---|
| New Castle | Leonard L. Williams Justice Center, 500 N. King Street, Wilmington | 302-255-0300 |
| Kent | Family Court, 445 S. Governors Avenue, Dover (its new address) | 302-672-1000 |
| Sussex | Sussex County Family Courthouse, 100 East Market Street, Georgetown | 302-855-7400 |
The court decides who owns the house. Everything after that, from the deed to the payoffs, runs through the same channels as any Delaware sale: a Delaware attorney conducts settlement, and the new deed goes on record at the county’s Recorder of Deeds.
Taxes and paperwork that work differently for spouses
Transfer tax
When one spouse deeds the house to the other, that deed is exempt from Delaware’s realty transfer tax, and so is a deed between former spouses after the final decree, for property they acquired before it. Selling to anyone else is taxed normally: 4 percent in most of the state, split evenly between seller and buyer unless your contract says otherwise.
Seller’s disclosure
Delaware’s condition report is not required when one spouse transfers the house to the other under a divorce settlement, or when one co-owner deeds to another. A sale to an outside buyer is not on that exemption list, so the report is still part of a market sale.
Your options for the house
| Route | What happens | Fits when | Watch out for |
|---|---|---|---|
| One spouse keeps it | That spouse buys out the other’s equity, usually by refinancing into their own name. | One of you can qualify for the loan alone and wants to stay. | Agreeing on a value, and a refinance that has to close for the other spouse to come off the mortgage. |
| Keep it for a while | The parent with the children stays in the house for a set period, then it is sold. | Stability for the kids matters more than a quick split. | Both names stay on the loan, and repairs and payments need a clear written plan. |
| List with an agent | The house sells on the open market and you split the net. | It is in good shape, you can cooperate on showings, and neither of you is in a hurry. | Two sellers must agree on price, repairs and every offer, while both keep paying. |
| Short sale or deed in lieu | The lender accepts less than the payoff, or takes the house back. | The loan balance is higher than any buyer would pay. | Lender approval takes time, and any shortfall needs to be addressed in writing. |
| Sell to a cash buyer like us | We buy as-is, settle on the date you both choose, and the attorney splits the net per your agreement. | You want one clean sale, the house needs work, or one spouse has already moved out. | You will usually net less than a market sale of a well-kept house. |
Not legal advice. A family law attorney can tell you how a Delaware judge is likely to treat your house, and how a sale fits your settlement.
A cash offer is most useful as a floor: a firm number you can compare against what a listing might bring after commission, repairs and months of joint payments. If one of you can afford to keep the house, that is often simpler still. We are a fit when both of you want to be finished and the house needs work that neither wants to pay for.
What to gather
- The deed. It shows how you hold title, and the date tells your lawyer whether the house is marital.
- The mortgage and any home equity statements. Both names usually stay on the loan until it is paid off or refinanced.
- Your separation agreement or court order. It says who signs, who gets what share, and whether proceeds must be held in escrow.
- Tax and utility bills. Anything unpaid comes off the top at settlement.
- Both owners’ contact details. If you are not speaking, the attorneys can pass papers back and forth.
How a sale to us works mid-divorce
- One walk-through, with whichever spouse has the keys, and one written number for both of you, usually within 24 hours.
- Each spouse can share the offer with their own lawyer before signing.
- Both owners sign the agreement of sale; signing can happen at different times and places.
- At settlement the attorney pays off the mortgage and splits the remainder the way your agreement or order directs.
If the mortgage has fallen behind while the divorce drags on, read facing foreclosure as well, since Delaware’s mediation program covers owner-occupied homes. Local detail lives on the New Castle, Kent and Sussex county pages.
Free help if payments have slippedDelaware’s Attorney General runs a foreclosure mediation hotline at (800) 220-5424 and lists free HUD-approved counselors on its mediation page. For a cash number both of you can look at, call us at (856) 226-4289.
Related situations
- Facing foreclosureWhen the payments stopped during the separation and a notice of intent has arrived.
- DownsizingMoving from a family-sized house to something one person can carry.
- House needs repairsRepairs neither spouse wants to fund before a listing.
- Vacant houseBoth of you have moved out and the house sits empty while the case goes on.
Delaware divorce and the house: common questions
Who gets the house in a Delaware divorce?
Whoever the two of you agree should get it, or whoever Family Court awards it to. If you ask the court to decide, it divides marital property equitably under 13 Del. C. § 1513, looking at how long you were married, each spouse’s income and contributions, and which parent the children will live with.
Does equitable distribution mean a 50/50 split in Delaware?
Not necessarily. Equitable means fair in light of the statute’s factors, not automatically equal. The court considers things like each spouse’s earning power, contributions as a homemaker, debts and tax consequences, and it does so without regard to marital misconduct.
Is the house marital property if only my name is on the deed?
Usually yes, if it was bought during the marriage. Delaware presumes that what either spouse acquired after the wedding is marital, and the name on the title does not change that. Exceptions include an inheritance or gift that one spouse kept in their own name, and anything a valid agreement carves out.
What if one of us owned the house before the marriage?
The house itself can stay separate, but it depends on how it is titled. Delaware excludes premarital property and its increase in value from marital property, yet a house the two of you owned jointly before the wedding is treated as marital. A lawyer should look at the deed and the dates.
Is it possible to sell while the divorce is still pending?
Yes, if both owners agree and sign. Many couples sell first and put the proceeds in escrow or split them under a written agreement. If one spouse refuses, Family Court can order the sale as part of dividing the property.
What if my spouse will not sign the deed?
Family Court can order a spouse to sign. Under 13 Del. C. § 1513(f), if the spouse still refuses, the court can direct its Clerk to sign in that spouse’s place, and the Clerk’s signature is as effective as the spouse’s own.
Is there transfer tax if I deed my half to my spouse?
No. Delaware exempts deeds between spouses, and deeds between former spouses after the final decree for property they acquired while still married. A sale to an outside buyer is taxed as usual; if that buyer is Northbound, the two of you as sellers pay half and we pay half.
Do divorcing spouses have to give a seller’s disclosure?
If you sell to an outside buyer, yes. Delaware’s exemption covers a transfer between spouses as part of a divorce property settlement, not a sale of the house to someone else, so the condition report is still due unless another exemption applies. When we buy, we buy as-is either way.
How long do we have to be separated for a Delaware divorce?
Generally six months. Delaware defines separation as living apart for six months or more before the court rules, and that can happen under the same roof if you sleep in separate bedrooms and do not have sexual relations. Either spouse must also have lived in Delaware for six months before filing.
Which Family Court handles our case?
Family Court sits in each county: the Leonard L. Williams Justice Center at 500 N. King Street in Wilmington, the new Kent County courthouse at 445 S. Governors Avenue in Dover, and the Sussex County Family Courthouse at 100 East Market Street in Georgetown.
Does my name come off the mortgage when I sign the house over?
No. Signing a deed changes who owns the house, not who owes the loan. Your name stays on the mortgage until the loan is paid off or the lender releases you, which is why many couples refinance or sell rather than simply swap deeds.