How Delaware treats the marital home
Delaware splits marital property in a way the Family Court finds fair, which is not always 50/50. Under 13 Del. C. §1513, the court divides property "without regard to marital misconduct," so who caused the breakup does not change who gets the house.
The court looks at factors such as:
- How long the marriage lasted.
- What each spouse contributed, including work as a homemaker.
- Whether it makes sense to give the family home, or the right to live there, to the parent who has custody of the children.
Property acquired during the marriage is presumed to be marital, even if only one spouse is on the title. The court can also put a lien on property to secure one spouse's share. That means a house in one name can still be split, and a spouse who moves out has not given up their claim.
Who has to sign to sell
If both of you own the house, you both generally need to sign the sale contract and the deed. A settlement attorney will not close without the signatures of everyone on title, or a court order that allows the sale without them.
That can stall things when spouses are not talking. A few ways people get past it:
- Agree in writing first. A signed property settlement that says "the house will be sold, and here is how we split the money" gives everyone, including a buyer, a clear path.
- Ask the court. If one spouse refuses to cooperate, your attorney can ask the Family Court to order the sale or decide who keeps the home.
- Use one point of contact. Many couples let their attorneys, or one neutral person, handle communication with the buyer so the sale does not become another fight.
Good news on paperwork: Delaware's seller disclosure law does not apply to a transfer between spouses as part of a divorce settlement. A sale to an outside buyer is different, and the normal disclosure rules apply unless another exemption fits.
Your three main options
Most Delaware couples end up choosing one of three paths. Here is how they compare.
| Option | How it works | Good fit when | Watch out for |
|---|---|---|---|
| Sell on the open market and split | List with an agent, pay off the mortgage, divide what is left | The house is in good shape and you can cooperate for a few months | Showings, repairs, and shared decisions while emotions run high |
| One spouse buys out the other | The staying spouse refinances or pays cash for the other's share | One spouse wants to stay, often for the kids, and can qualify alone | Refinancing in one name; agreeing on the home's value |
| Quick as-is sale for cash | A direct buyer purchases the house in its current condition | You need a clean break, the house needs work, or cooperation is fragile | Cash offers come in below full retail value |
A buyout usually needs an agreed value. An appraisal gives both sides a neutral number. If the staying spouse cannot refinance, the other spouse may stay on the mortgage for years, which can affect their ability to buy again. Ask your attorney how your settlement handles that risk.
Timing the sale around the divorce
You can sell before the divorce is final, during it, or after. Each timing choice has trade-offs.
- Before or during the case: Selling early turns a hard-to-split asset into cash that is easy to divide. Proceeds are often held in escrow until the court or a written agreement says how to split them.
- After the decree: The order spells out who does what, which can reduce arguments. But both of you may keep paying the mortgage, taxes, and insurance on a house one of you no longer lives in.
- When someone has already moved out: An empty house brings its own costs and insurance questions. See our page on selling a vacant house.
Taxes matter too. The federal exclusion lets you avoid tax on up to $250,000 of gain per person ($500,000 married filing jointly) if you owned and lived in the home for 24 of the last 60 months. Whether you file jointly in the year you sell can change the math. Our guide on capital gains when selling a Delaware house explains the basics.
What the numbers look like
Before you pick a path, figure out what each of you would actually walk away with. Start with the likely sale price, then subtract:
- The mortgage payoff and any home equity line.
- Your share of Delaware's realty transfer tax, which is generally 4% total and customarily split 50/50 between buyer and seller.
- Agent commission and repair costs, if you list.
- Any liens, such as unpaid taxes or judgments.
Our net proceeds calculator and cash vs. list calculator can help you compare a listing to a cash sale side by side. Share the results with your attorney so the settlement reflects real numbers.
Where Silverside Home Buyers can help
We are a local Wilmington company that buys houses as-is, and we can work with both spouses and both attorneys. We do not take sides. Our job is to give you a clear written offer and a closing date that fits your court schedule.
- A cash offer with no repairs, no showings, and a closing date you choose.
- Fix & List if the house needs updates before it can sell for more. We handle repairs and you list with any licensed Delaware agent you choose (we take no commission or referral fee). We are not agents.
- Cash + rent-back if one spouse needs a few months in the house while the kids finish the school year.
Our cash price will be lower than a full retail sale. For some couples, the speed and the end of shared decisions are worth that gap. For others, listing makes more sense, and we will say so. Call (302) 798-8655 to talk it through.
General information, not legal or tax advice. Talk with a Delaware family law attorney before you sign anything.
Want to see your options?
Tell us about the house. We'll lay out every option that fits, with the numbers, and no obligation.
Get My Written Offer Call (302) 798-8655Frequently asked questions
Can my spouse sell our house without my permission in Delaware?
Generally no, if you are both on the title. A settlement attorney will need both signatures or a court order to close.
Is the house marital property if only my spouse's name is on the deed?
It may be. Under 13 Del. C. §1513, property acquired during the marriage is presumed marital regardless of whose name is on the title.
Does it matter who caused the divorce?
No. Delaware's Family Court divides marital property without regard to marital misconduct.
Do I have to fill out a seller disclosure if I transfer the house to my spouse?
Delaware's disclosure law exempts transfers between spouses as part of a divorce settlement. A sale to an outside buyer usually still requires one.
Can we sell before the divorce is final?
Yes, if both owners agree or the court allows it. Proceeds are often held in escrow until the split is decided.
Will a cash buyer work with both of our attorneys?
We will. We can send the offer and contract to both attorneys and schedule closing around your court dates.
Sources
General information, not legal, tax, or financial advice. Laws, fees, and schedules change. Confirm with the office named or your attorney.