Delaware courts divide marital debt through equitable distribution under 13 Del.C. § 1513, meaning judges allocate debt fairly based on each spouse's circumstances rather than splitting everything 50/50. The Family Court filing fee is $175 as of March 2026, and at least one spouse must have resided in Delaware for six months before the court can grant the divorce. Debt acquired during the marriage is presumed marital regardless of which spouse's name appears on the account, though the court considers 11 statutory factors when determining who pays what portion of outstanding balances.
Key Facts: Delaware Marital Debt Division
| Category | Details |
|---|---|
| Filing Fee | $175 ($165 petition + $10 security fee) |
| Waiting Period | 6 months separation for most grounds |
| Residency Requirement | 6 months continuous Delaware residency |
| Grounds for Divorce | No-fault (irretrievably broken) |
| Property Division Type | Equitable Distribution |
| Governing Statute | 13 Del.C. § 1513 |
| Average Marital Debt | $62,870 per Delaware household |
| Average Credit Card Debt | $7,598 per Delaware resident |
How Delaware Classifies Marital Debt
Delaware Family Courts classify all debt acquired from the wedding date until the divorce filing as marital debt, regardless of which spouse incurred the obligation or whose name appears on the account. Under 13 Del.C. § 1513, the court has authority to equitably divide, distribute, and assign marital property—including debt—between the parties without regard to marital misconduct. This means a credit card opened solely in one spouse's name during the marriage is still subject to division if the charges benefited the household.
The distinction between marital and separate debt determines whether you bear sole responsibility or share it with your spouse. Separate debt includes obligations incurred before the marriage, debts from an inheritance used solely by one spouse, and debts acquired after the date of separation that did not benefit the marriage. Delaware courts apply a rebuttable presumption that all debt acquired during the marriage is marital, placing the burden on the claiming spouse to prove otherwise with documentation such as prenuptial agreements, inheritance records, or proof of post-separation acquisition.
Types of Debt Subject to Division
Delaware courts routinely divide these categories of marital debt:
- Mortgage balances on the marital home (average Delaware mortgage: $38,000+ remaining)
- Credit card debt accumulated during the marriage ($7,598 average per resident)
- Auto loans on vehicles purchased during the marriage
- Student loans taken out during marriage that benefited household income
- Medical bills incurred during the marriage
- Tax liabilities from joint returns filed during the marriage
- Home equity lines of credit (HELOCs)
- Personal loans co-signed by both spouses
The 11 Statutory Factors Courts Consider
Delaware judges evaluate 11 specific factors under 13 Del.C. § 1513(a) when determining how to divide marital debt equitably. No single factor controls the outcome, and the court weighs each based on the specific circumstances of your case. Understanding these factors helps you anticipate how a judge might allocate your shared obligations.
The statutory factors include: (1) length of the marriage, (2) any prior marriages, (3) age and health of each spouse, (4) sources of income beyond employment, (5) vocational skills and employability, (6) each spouse's liabilities and financial obligations, (7) whether property awards substitute for alimony, (8) opportunity for future asset acquisition, (9) contribution to marital property acquisition, (10) tax consequences of the division, and (11) the value of property set aside to each spouse.
For debt division specifically, factor (6)—liabilities and financial obligations—carries significant weight. A spouse earning $150,000 annually with stable employment may receive a larger share of marital debt than a spouse earning $45,000 with inconsistent income, even if both contributed equally to accumulating the debt. Courts balance ability to pay against the goal of equitable distribution.
Credit Card Debt Division in Delaware
Delaware courts assign credit card debt based on several factors: whose name is on the account, what the purchases were used for, and each spouse's ability to repay. Joint credit cards with both spouses named are typically divided based on the 11 statutory factors, while individual cards may follow the cardholder—unless the purchases clearly benefited the marriage. A credit card used to buy household furniture, pay for family vacations, or cover children's expenses is marital debt even if only one spouse's name appears on the account.
The average Delaware resident carries $7,598 in credit card debt according to Federal Reserve data. In a divorce, this debt must be allocated between spouses. Common approaches include:
- Offsetting debt against assets (spouse keeping the house also takes on equivalent credit card debt)
- Dividing debt proportionally based on income ratios
- Assigning debt to the spouse who incurred it for non-marital purposes
- Requiring both spouses to pay down joint accounts before finalizing the divorce
Joint Account Warning
A divorce decree does not override your credit card agreement with the issuing bank. If both spouses are named on a joint credit card and the court assigns payment responsibility to your ex-spouse, the credit card company can still pursue you for the full balance if payments stop. Your only protections are: (1) requiring the responsible spouse to transfer the balance to an individual account in their name only, or (2) paying off the balance before the divorce is finalized and seeking reimbursement through other asset division.
Mortgage and Real Estate Debt
Delaware courts address mortgage debt alongside the disposition of the marital home. Three primary scenarios emerge: one spouse keeps the house and assumes the mortgage, the couple sells the house and splits any equity (or debt), or one spouse buys out the other's interest. The approach depends on the home's equity position, each spouse's ability to qualify for refinancing, and the presence of minor children who might benefit from housing stability.
When a marital home has negative equity—owing more than the property is worth—Delaware courts treat this as marital debt subject to division. For example, if a home is worth $350,000 but the mortgage balance is $380,000, the $30,000 shortfall represents shared marital debt. Courts may assign this debt to the spouse keeping the home, offset it against other assets, or order the home sold with both spouses sharing responsibility for any deficiency balance.
Refinancing Requirement
The spouse keeping the marital home should refinance the mortgage within 90 to 180 days of the divorce decree to remove the other spouse from the loan. This protects the departing spouse from credit damage if payments are missed and releases them from the contractual obligation. Delaware courts often include refinancing deadlines in divorce decrees, with failure to refinance triggering a forced sale of the property.
Student Loan Debt Treatment
Student loans in Delaware divorce cases receive nuanced treatment based on timing and benefit to the marriage. The general principle is that student loans belong to the spouse who received the education, but Delaware courts consider whether the education benefited the household during the marriage. A nursing degree earned early in the marriage that generated $80,000 annual income for 15 years of the marriage may be treated differently than an MBA obtained in the final year of marriage that provided no income benefit.
Delaware residents carry an average of $38,404 in student loan debt, with borrowers under 35 holding the majority of this balance. When dividing student loan debt, courts consider:
- When the loan was taken out relative to the marriage timeline
- Whether the education increased household income during the marriage
- How much the non-student spouse contributed to household expenses while the other attended school
- Whether the couple jointly decided to take on the educational debt
- The earning capacity the degree provides going forward
Premarital Student Loans
Student loans incurred before the marriage are typically classified as separate debt belonging solely to the spouse who took them out. However, if marital funds were used to make payments on premarital student loans during the marriage, the paying spouse may have a claim for reimbursement as part of the overall property division.
Auto Loan Debt Division
Delaware courts assign auto loan debt to the spouse who retains the vehicle, treating the car and its associated debt as a package. Under 13 Del.C. § 1513, the court considers the vehicle's fair market value minus the loan balance when calculating each spouse's share of marital property. A vehicle worth $25,000 with a $15,000 loan balance represents $10,000 in marital equity, while a vehicle worth $20,000 with a $28,000 loan balance represents $8,000 in marital debt.
When both spouses co-signed an auto loan, the divorce decree assigning payment responsibility to one spouse does not release the other from the original loan contract. The lender can pursue either co-signer for the full balance if payments stop. Options to protect the non-retaining spouse include:
- Refinancing the auto loan in the retaining spouse's name only
- Selling the vehicle and paying off the loan before finalizing the divorce
- Trading in the vehicle for one the retaining spouse can finance independently
- Including indemnification language in the divorce decree (provides legal recourse but does not bind the lender)
Tax Debt Responsibility
Joint tax liabilities from returns filed during the marriage are marital debt subject to equitable division. Delaware courts consider who earned the income that generated the tax obligation, who benefited from any deductions or credits, and who failed to withhold adequate taxes during the tax year. The IRS does not recognize divorce decrees—both spouses who signed a joint return remain jointly and severally liable for the full balance regardless of what the divorce decree states.
Innocent Spouse Relief
If your spouse underreported income or claimed improper deductions without your knowledge, you may qualify for Innocent Spouse Relief from the IRS. This relief requires demonstrating that: (1) you filed a joint return with an understatement of tax, (2) the understatement was due to your spouse's erroneous items, (3) you did not know or have reason to know of the understatement, and (4) it would be unfair to hold you liable. The deadline to request Innocent Spouse Relief is generally two years after the IRS begins collection efforts.
Protecting Yourself During Delaware Divorce
Delaware courts issue automatic restraining orders when a divorce petition is filed, prohibiting both spouses from incurring new debt for which the other may be liable except for litigation costs or necessities of life. Violating this order by running up credit cards or taking new loans can result in sanctions and may cause the court to assign that debt entirely to the offending spouse. Document your financial position at the time of separation and monitor joint accounts throughout the divorce process.
Strategies to protect yourself from your spouse's post-separation debt accumulation include:
- Closing or freezing joint credit card accounts immediately upon separation
- Removing yourself as an authorized user on your spouse's individual accounts
- Notifying creditors in writing that you will not be responsible for new charges
- Opening individual accounts in your name only for necessary expenses
- Documenting all joint account balances as of the separation date
- Monitoring your credit report for new joint accounts or authorized user additions
Contested vs. Uncontested Debt Division
| Factor | Uncontested | Contested |
|---|---|---|
| Timeline | 30-90 days after 6-month separation | 12-18+ months |
| Total Cost | $300-$2,000 | $10,000-$50,000+ |
| Debt Division Method | Spouses agree on allocation | Judge decides using 11 factors |
| Attorney Fees | Optional or limited scope | Required for complex cases |
| Control Over Outcome | Maximum | Minimal |
Uncontested divorces where spouses agree on debt division can finalize in 30 to 90 days after meeting the six-month separation requirement. Filing fees total $175, and couples may complete the process without attorneys if their agreement is comprehensive. Contested cases where spouses dispute debt allocation typically cost $10,000 to $50,000 in attorney fees and take 12 to 18 months to resolve, with complex cases involving business debt or substantial assets exceeding $100,000 in legal costs.
Bankruptcy and Divorce Debt Considerations
Filing bankruptcy before, during, or after divorce significantly impacts debt division. Debts discharged in bankruptcy cannot be assigned to either spouse in the divorce—they simply disappear. Delaware attorneys often advise couples with substantial joint debt to consider filing joint bankruptcy before divorcing, eliminating the debt and simplifying property division. The decision depends on each spouse's income, assets, and eligibility for Chapter 7 versus Chapter 13 bankruptcy.
Key timing considerations:
- Joint bankruptcy before divorce eliminates debt division disputes entirely
- Bankruptcy during divorce can complicate proceedings—automatic stay affects debt-related orders
- Post-divorce bankruptcy by one spouse does not discharge their obligation to pay debts assigned in the divorce decree
- Domestic support obligations (alimony, child support) survive bankruptcy and cannot be discharged