Delaware Military Divorce Laws

Divorce Law Cases Setting Precedent in Delaware

Delaware military divorce laws have held military retirement pay to be a <i>divisible property asset</i> in divorce proceedings.

• 1982 Donald R.R. v. Barbara S.R., 454 A.2d 1295 (Del. Sup. Ct. 1982).
• 1983 Smith v. Smith, 458 A.2d 711 (Del. Fam. Ct. 1983). Declared: Nonvested pensions to be divisible; Important Case Notes:
  1. The original 1981 military divorce case declared the military pension could be considered income when allocating alimony and child support
  2. Prior to McCarty, Delaware treated all pension rights as marital property.
  3. Smith v. Smith pointed out that cases impacted by the McCarty decision (cases between June 25, 1981 and September 8, 1982) could be reopened, because to do otherwise would deprive them of “substantial property interests which all other similarly situated litigants have been awarded.”

In Smith v. Smith, it was again clarified how military retirement pay is not alimony

“Child support terminates when each child becomes ineligible under the statute whereas a property award is permanent; alimony terminates upon death of the spouse or her remarriage whereas a property award either in lump sum or periodic payments would not; alimony is taxable to the Wife and deductible to the Husband whereas a property award is not.” source

Note: This page will be edited as more Delaware case information and links become available.

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