Patrick J. Boyer

In a divorce case, retirement assets are subject to equitable division based upon enumerated statutory factors. Equitable distribution does not always mean equal division. For example, certain factors require the Court to consider current incomes, future earning capacities, and other financial circumstances. Often, the lower-earning spouse receives a majority of the marital assets, including retirement accounts and pensions.

Marital assets comprise property acquired during the marriage, absent certain exceptions. The growth of a non-marital asset remains non-marital property. Often, marital property is commingled or mixed, meaning it has both marital and non-marital components. This non-marital component not only includes the date-of-marriage balance on the retirement account but also any passive gains that can be proven to have been generated from the pre-marital balance. Establishing this passive gain often requires the assistance of a divorce financial expert or accountant.

Retirement assets with ascertainable balances, such as 401(k) plans, IRAs, and other defined contribution accounts, are often netted together and subjected to one percentage division. By way of illustration, if a husband has $150,000 in his 401(k) and a wife has $50,000 in her 401(k), and the percentage split is 50/50, the husband will owe the wife $50,000 via a Qualified Domestic Relations Order (QDRO) to effectuate the division of retirement funds. The division of such retirement accounts is also subject to market gains and losses.

Pensions, which often do not have ascertainable present values because they are based in part on future events such as future compensation and years of service, are divided pursuant to a coverture fraction referred to as the Cooper Formula with a 50% multiplier. The Cooper Formula takes the number of years worked toward the pension during the marriage as the numerator and uses the total number of years worked toward the pension as the denominator. That fraction is then subjected to a 50% multiplier, which is the award given to the non-employee spouse. For example:

10 years worked during the marriage x 50% = award to non-employee spouse
20 years total worked

Thus, in the illustration above, if the total pension benefit upon reaching pay status was $4,000 per month, the non-employee spouse would receive $1,000 per month, with the employee spouse retaining $3,000.

To learn more about this topic or for personalized guidance, contact attorney Patrick Boyer, who focuses on family law matters including divorce, equitable distribution, and retirement asset division. Patrick provides clients with strategic advice and compassionate support during challenging transitions. Call 302-654-4454 or visit macelree.com/contact-us.

A parent’s ability to modify a custody order in Delaware depends upon the nature of the modification request, whether the prior custody order was entered by a Judge after a hearing on the merits, and the length of time that has passed between the entry of the prior order and the modification request.

Delaware distinguishes between “custody” and “visitation” under its family law statutes. Legal custody refers to the ability to make important decisions on the child’s behalf, while residency refers to where the child primarily lives. If the child lives primarily with one parent, that parent has primary residential custody. If the parenting time is equally or nearly equally shared, it is referred to as shared residency. The contact a non-custodial parent has with the child—including holidays, exchange times, and vacations—is considered visitation.

Requests to modify visitation in Delaware are always evaluated under the best interests of the child standard, as set forth in 13 Del. C. § 722. A custody order by agreement of the parents may also be modified using the same best interests standard. However, it’s important to note that even when this standard applies, parental agreements carry legal weight. Some Family Court Judges will not consider events that occurred prior to the original agreement, and any request for a modification may raise the question of why the existing parenting agreement no longer works.

If a Judge entered a custody order after a full hearing, a parent may not seek to modify the custody provisions of that order for two years, unless they can prove that continuing the current arrangement would jeopardize the child’s physical health or significantly impair the child’s emotional development. This is a high legal standard that is difficult to meet. After the two-year mark, the threshold for modification is lower and again centers around the child’s best interests.

Author Patrick J. Boyer concentrates his practice on family law. He advocates in various areas including, but not limited to, divorce, property division, alimony, child custody and visitation, child support, and domestic violence. In addition, Patrick assists his clients with issues involving guardianship and third-party visitation. He is licensed in Delaware and Pennsylvania and works out of the firm’s Centreville, Delaware office.