Syd with tennis ballAlaska recently enacted legislation authorizing judges to consider the well-being of animals and to allow judges to assign joint custody of pets. The Providence Journal has reported that Rhode Island is now considering similar legislation. Representative Charlene Lima recently introduced a bill that would require judges to consider the best interests of pets when deciding who gets custody of them in a divorce.

The First State is generally pet friendly. In fact, the Animal League Defense Fund ranked Delaware 15th in the nation for animal protection in 2016. However, as noted in my prior post, pets are considered to be personal property in a divorce here. We will have to wait to see if Delaware will follow the lead of Alaska and Rhode Island to change the status of our pets.  Stay tuned!

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

Dollar SignsIn addition to stress and host of other emotions, a divorce will likely raise a number of financial concerns. Lawyers and financial planners can partner to help clients through the court process.  Although each case is unique and requires specific consideration and analysis, the commonly asked questions set forth in my recent article in ThinkAdvisor, titled “Top 5 Things Financial Planners Need to Know About a Divorce,” can assist financial planners in their general understanding  of the divorce process and the role that finances play.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

 

A divorce raises any number of tax issues in the short and long term.  As described in my recent article in Delaware Business Times entitled “If there’s one sure thing in divorce, it’s taxes,” couples going through a divorce may need to consider who will claim the dependency exemption for their children, whether financial support is considered alimony for tax purposes, and whether legal fees associated with a divorce are deductible.  Gathering the necessary information and planning ahead can help parties avoid stress at tax time and beyond.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

 

Prior posts have examined how Delaware law defines and divides marital property.  Presently, marital property is generally defined as “all property acquired by either party subsequent to the marriage.”  13 Del. C. § 1513(b). House Bill 271, which was recently introduced, proposes to expand that definition to include “jointly-titled real property acquired by the parties prior to their marriage, unless excluded by valid agreement of the parties.”  The Bill is currently assigned to the Judiciary Committee in the House.

House

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Leslie Spoltore is an attorney with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

As highlighted by Adam Duvernay’s recent article in The News Journal, many Delawareans have an abiding love of black and white license plates – particularly those with low digits.  For example, license plate number 14 recently sold at auction for $325,000, tag number 457 sold for $32,000 and tag number 1785 sold for $8,000.  So, if you are itemizing your marital estate don’t forget to check the back of your car.  It may be hard to believe, but you may something of value there.

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leslie_SpoltoreLeslie Spoltore is an attorney with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

The Ashley Madison data breach has raised many eyebrows and may be the cause of many uncomfortable dinner conversations lately.  A recent post on the Pennsylvania Family Law Blog by Aaron Weems, a Partner in our Blue Bell, Pennsylvania office, explores what that data breach could mean to divorce lawyers and their clients. Just as Aaron points out for Pennsylvania cases, the existence an affair (if a spouse had an affair) in and of itself may not have an impact on the division of marital property in a Delaware divorce action.  Delaware is what is often referred to as a “no fault” state because when Family Court is asked to divide marital property, it does so “without regard to marital misconduct.”  Does that mean that an affair can never be relevant?  Certainly not.  It may be relevant if, for example, in the course of the affair a spouse wasted marital asset or funds.  So, while a data breach may help establish that an affair occurred, that is only the beginning of the analysis in the context of the equitable division of assets.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

 

Syd puppy

It can be a touching and romantic gesture when someone gives a puppy as a gift to his or her significant other.  Sadly, not all relationships last forever.  A prior post explored pets and divorce, but what if the dog was a gift between a couple who are dating but never get engaged?

Though dog lovers may strongly disagree, dogs are considered personal property under Delaware law.  As a result, neither the best interest of the dog nor a person’s attachment to the dog are the key, ownership is.

Typically, once they are given gifts are the property of the recipient.  There are, however, exceptions to this general rule.  As examined in the case of Conte v. Fossett, Del. Super., No. 12A-03-007, Jurden, J. (March 19, 2013), a person giving a gift of personal property may recover the gift “(1) when there is an express agreement that the gift is conditional; or (2) when the gift is of such ‘symbolic significance or value’ that the law will imply it was given in contemplation of marriage.”  Id. at *7.  For those thinking that the second exception presents a safe haven for every boyfriend or girlfriend who gives a puppy as a gift to their significant other – think again.  The Court in Conte specifically noted that the second exception does not extend to gifts given in “contemplation of relationships,” only contemplation of marriage.  In addition, the Court held that the dog in that case had the same legal status as a piece of furniture and did not have any symbolic significance.  Id. at 8.  Given the limited application of the second exception, the best course may be to consider the first exception – an express agreement as to who owns the dog and who gets to keep it if the relationship ends.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

 

The Delaware Code defines marital property as “all property acquired by either party subsequent to the marriage.” 13 Del. C. § 1513(b). Like most general rules, there are exceptions. Excepted from the definition of marital property are certain items including property acquired “by gift, except gifts between spouses, provided the gifted property is titled and maintained in the sole name of the donee spouse, or a gift tax return is filed reporting the transfer of the gifted property in the sole name of the donee spouse or a notarized document, executed before or contemporaneously with the transfer, is offered demonstrating the nature of the transfer.”

So, if husband gives wife a gift during the marriage typically falls within the definition of marital property. Clear enough.  What if the children give one parent a present and the purchase was funded by the other parent? The marital or non-marital nature of those gifts may not be so clear.

Consider the case of C.K. v. E.K., 2006 WL 2388868 (Del. Fam. Ct.). Wife had received various gifts from the children during the marriage and she sought to exclude them as non-marital property during the divorce. Examining the facts of that case, the Family Court stated:

The record indicates that the tennis bracelet and Kitchen-Aid mixer were given to Wife as Mother’s Day presents. Husband claims that he financed the sale of the Mother’s Day gifts for the children although it appears from the record that some or all of the children have reimbursed Husband. The Court concludes that the evidence fully shows that the bracelet, diamond ring and “wrap” ring were given to Wife for her exclusive personal use and enjoyment and, therefore, shall be considered non-marital property. The Kitchen-Aid mixer, although a gift for Wife, is personal property that benefits the household. As such, the mixer is marital property and shall be subject to the two list method of dividing personal marital property. Id. at *6.

gift

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

More and more divorcing couples are electing to engage in mediation outside of the courthouse in an effort to amicably resolve issues of property division and alimony. This option is often appealing because it can be a faster, more cost effective path to resolving a case. In addition, an amicable resolution can benefit the entire family by avoiding the stress associated with contested litigation. In order to make the most of mediation, the following tips can be helpful:


1) Be prepared. Before you sit down with the mediator make sure you have done your due diligence. Gather the documentation you may need and organize the information so that you can find it easily during the mediation. As you review your information, consider whether you need advice and from whom. For example, if you have questions about how to handle a tax issue speak with a CPA or tax attorney in advance.

2) Have a game plan. Consider what you want to and realistically can accomplish during the mediation. For example, at your initial meeting with the mediator the goal may be to identify and value all the marital assets and debts. Whatever your game plan, mediation will be more efficient and effective if you have taken some time to think through what you hope to achieve in advance.

3) Prioritize. As the Rolling Stones have long said, “You can’t always get what you want, But if you try sometimes well you might find, You get what you need.” An agreement often involves give and take by both parties. So, prioritize what is important to you.

4) Be flexible. There is no “one size fits all” solution. Keeping an open mind in mediation can allow for creative solutions that fit your specific situation and allow you to get what you need.

5) Be honest. Efforts to settle a case, such as discussions during mediation, are confidential and cannot be used as evidence in court. Mediation is, therefore, an opportunity for candid (respectful) discussion of the issues with an eye toward reaching a resolution. If both parties are not open and honest, resolution is more likely to be elusive.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP. Leslie practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

Can a home that is purchased prior to marriage and titled in the name of only one spouse ever be considered marital property? The short answer is yes.

Delaware law presumes that property purchased prior to marriage is non-marital. See 13 Del. C. §1513.  However, that presumption may be overcome and an equitable exception to the rule applied under certain circumstances. Those circumstances may exist if the home was purchased in contemplation of marriage.

Home For Sale Stock Photo

The party seeking to overcome the presumption has the burden to prove that it was the parties’ joint intent at the time the property was purchased that it was done in contemplation of marriage. If the parties do not agree that it was their express intent to purchase the property as “theirs,” the Court will consider the evidence to discern the parties’ implied intent. See B.G. v. A.S., 2014 WL 4268434 (Del. Fam. Ct.). Family Court has declined to adopt a bright line test to determine intent. Rather, the Court will apply a case-by-case analysis to determine if the property was acquired in contemplation of marriage.
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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP. Leslie practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.