Disclaimer: I am not a lawyer. This is general information about Delaware law, not legal advice. For advice about your situation, consult a licensed Delaware attorney.
Detailed Answer
If you still co-own real property with an ex after a divorce in Delaware and the divorce decree or settlement did not clearly transfer or sell the property, you have several legal options to force a division or sale. The common routes are (1) ask the family/divorce court to enforce the divorce judgment or settle the property issue, or (2) file a partition action in a civil court to force physical division or sale. Which option is right depends on how title is held, what the divorce documents say, and whether any liens or mortgages exist.
1) Revisit the divorce order or settlement (enforcement)
First, carefully read your divorce decree and any written settlement. If the decree or settlement required sale, transfer, or buyout and the other party refuses to follow it, you can ask the Family Court to enforce the order or hold the other party in contempt. Delaware divorce and family law are found in the Delaware Code (see Title 13 for domestic relations): Del. Code Title 13 (Domestic Relations). The Delaware Family Court can enforce custody, support, and certain property provisions of a divorce judgment. See the Delaware Family Court web site for procedures: Delaware Family Court.
2) Partition action (force sale or division)
If the divorce court did not resolve ownership or the property remains in both names, you can file a partition action. Partition is a civil lawsuit asking the court to divide the land among co-owners or to order a sale and split the proceeds. Partition is typical when parties own property as tenants in common or hold unclear title.
Key points about partition in Delaware:
- Who can file: any co-owner with a legal interest in the property.
- Remedies: the court can order a partition in kind (physically divide the land) when practical, or, more commonly with houses or single-family lots, order a sale and divide the net proceeds among owners after liens and costs.
- Process: file a complaint for partition in the appropriate civil court (many partition actions are handled in Superior Court). See the Delaware Superior Court page for filing info: Delaware Superior Court.
- Costs and appointment: the court may appoint a commissioner or referee to supervise appraisal and sale. The court will deduct costs, mortgages, and liens before dividing net proceeds.
- Defenses: co-owners can contest the action, request a buyout, or ask the court to credit contributions (mortgage payments, improvements) before dividing proceeds.
3) Buyout or negotiated settlement
Often parties avoid litigation by negotiating a buyout. An appraiser sets fair market value; the buying party pays the other party for their share, clears title work, and refinances if needed. Negotiation or mediation is usually faster and cheaper than court. If you reach an agreement, record the deed and update mortgage arrangements if necessary.
4) Quiet-title and lien issues
If title is disputed or clouded by liens, you may need a quiet-title action in court to clear record title before sale or transfer. Any mortgages, mechanics’ liens, or judgments generally must be paid from the sale proceeds in a partition action.
5) Tax, mortgage, and timing considerations
Expect these practical matters:
- Mortgages and liens: a sale (voluntary or court-ordered) must satisfy mortgage lenders first unless a lender agrees otherwise.
- Taxes: sale proceeds may trigger capital gains taxes; closing costs and commissions reduce net proceeds.
- Timeline: partition and enforcement actions can take months to over a year, depending on contested issues and court backlog.
6) When the divorce court still has jurisdiction
If your divorce case remains open, the divorce court might still have authority to decide property division or to modify prior orders concerning marital assets. If you separated property division into a separate action, you can file a new civil action instead.
7) Example (hypothetical)
Suppose you and your ex own a house as tenants in common. Your divorce decree awarded the house to neither party and ordered the parties to agree on a sale; your ex refuses. You can (A) file a motion in Family Court to enforce the divorce judgement if it specifically required sale, or (B) file a partition complaint in Superior Court asking the court to order sale and divide proceeds. If you can buy the ex out, you can avoid litigation by paying their share based on an appraisal and refinancing the mortgage in your name.
Where to find the law and court rules
Delaware statutes and codes: Delaware Code (main). Domestic relations and divorce matters: Title 13, Delaware Code. For civil partition filings and procedures, start with the Delaware Superior Court: Delaware Superior Court. If you are unsure which court to use, contact the court clerk or a Delaware attorney.
Helpful Hints
- Gather paperwork: deed, divorce judgment, settlement agreement, mortgage statements, tax bills, receipts for improvements, and any communications about sale plans.
- Check the deed: confirm how title is held (joint tenants, tenants in common, etc.). The form of title affects available remedies.
- Try mediation: courts favor settlement; mediation often saves time and money.
- Get an appraisal: know the home’s market value before negotiating or filing suit.
- Consider costs: court fees, legal fees, appraisal, commission, and taxes will reduce your net recovery in a sale.
- Watch liens and mortgages: a lender’s consent or payoff is necessary for a clear sale.
- Act promptly: unresolved property ownership can complicate refinancing and tax filing; statute-of-limitations issues can arise for some claims.
- Consult a Delaware attorney: an attorney can explain whether to pursue enforcement in Family Court, file a partition action in Superior Court, or pursue alternative remedies.
If you want help finding a local Delaware attorney experienced in partition actions and post-divorce property enforcement, consider contacting the Delaware State Bar Association or the court referral services on the Delaware Courts website.