Divorce in Delaware

If you're on the verge of a divorce in Delaware, this page contains the information and resources you'll need for making smart choices in your situation. It can also help if you are unsure about taking the next step and only want a trial separation to see if things will work out.

We've provided an overview of the divorce laws to help you understand what to expect in a divorce or separation. If you need legal help, you can locate qualified divorce attorneys willing to represent you. There are also options to access the various divorce papers and online divorce preparation services when you can't afford a lawyer.

If you have children, you'll be able to use the support calculator to get a general idea of the amount of child support which could be awarded. There are also options for finding local divorce support meetings to help you cope with everything or locate the various domestic abuse services within the state.

Get answers to your questions about divorce. With JustAnswer.com you can get input on your situation from a lawyer that specializes in family law. Find out how.

Delaware Divorce Law

Based on Delaware Complete Domestic Relations Laws - Title 13

RESIDENCY FILING REQUIREMENTS: To initiate a divorce in the state of Delaware, you must first meet the residency requirements. To meet this requirement, you need to have lived in the state, or have been stationed on a military base within the state, for 6 months prior to filing a divorce petition.

FILING FOR DIVORCE IN DELAWARE: Divorce cases are handled by the family court and the petition may be filed in either the county where you live or the county where your spouse lives. A divorce may proceed as uncontested if the respondent does not file an answer within 20 days or if the respondent files an answer agreeing the terms of the initial divorce petition. If the respondent files his or her answer challenging information or conditions in the petition, the divorce will proceed as contested and a hearing will be scheduled. 

LEGAL SEPARATION: You and your spouse must be legally separated for 6 months before filing for a no-fault divorce. To qualify as a legal separation, you must not be having sexual relations or sharing a bed with each other, unless you are trying to reconcile the marriage. Spouses may, however, reside in the same residence while separated, as long they occupy separate bedrooms and do not have a sexual relationship with each other.

After a divorce petition has been initiated, either party may request interim orders for residence of the home, temporary alimony, child custody and/or visitation, and child support.

GROUNDS FOR DIVORCE: The sole ground for a divorce in Delaware is irretrievable breakdown of the marriage relationship based on the following conditions:

• Separation by mutual consent; or
• Separation due to misconduct, such as physical, mental or emotional abuse, infidelity, abandonment, alcohol or substance abuse, imprisonment for more than 1 year; or
• Separation due to mental disorder; or
• Separation due to incompatibility, without regard to the fault of either party.

You must be separated from your spouse for at least six months before filing for a no-fault divorce. When filing for a divorce based on separation due to misconduct, there is no specific amount of time that you need to be separated. But you must substantiate the misconduct by providing proof of the transgressions before your divorce will be granted on this ground.

Genuine efforts to reconcile preceding divorce, even briefly resuming marital relations and sleeping together in the same bed, shall not suspend the required time-frame for living separate and apart, if the parties haven't had sexual interactions or slept in the same bedroom for 30 days prior to the Court hearing the divorce petition.

ANNULMENT: A marriage annulment may be granted in Delaware based on the conditions listed below as long as the time requirements are met:

1. An annulment based on the following grounds must be filed no later than 90 days after the petitioner obtained knowledge of the described condition.

• One partner lacked the capacity to willfully agree to be married, either due to mental incapacity or due to the impact of drugs, alcohol, or other incapacitating substances. 
• The marriage was entered into based on fraud or misrepresentation of the other party. 
• One of the spouses' entered the marriage under pressure or duress. 
•  One or both parties were married as the result of a joke or a dare.

2. A petition for an annulment must be filed within the 1 year period after the petitioner obtained knowledge of the inability to consummate the marriage, and the petitioner was not made aware of this possibility when the marriage occurred.

3. An annulment must be filed within the 1 year period after the date the marriage if one of the partners was not old enough to be legally married and had not obtained the permission of his or her parents to marry. The annulment may be filed by the under-aged party or that party's parent or legal guardian.

4. A marriage annulment may be requested at any time by either spouse prior to the death or final settlement of either party's estate if the marriage was prohibited or voidable due to bigamy or marriage between close relatives. 

 COUNSELING REQUIREMENTS: If the spouses have children together which are under the age of 17, they will be required to participate in a "Parenting Education Course". Parents are responsible for paying for the course and do not have to attend the same course. Attendance is not required if the court determines, upon motion, that it is not necessary for the parents to participate in the course.

DIVISION OF PROPERTY: Property owned before the marriage is considered separated property. Inheritances and gifts (except gifts between spouses) received during the marriage are also considered separated property.

In Delaware, all property acquired throughout the marriage is considered martial property, regardless of how the property is titled. If the parties are unable to agree on how everything will be split, the court will distribute the marital estate equitably and without considering marital misconduct, based on:

• How long the couple were married;
• The ages of each spouse, their health, employability, income resources, and debts, as well as their needs;
• The capacity of each spouse to acquire future income and assets;
• Each spouse's contribution in the attainment, maintenance, dissipation, appreciation or depreciation of marital property, including a spouse's contribution as a husband, wife, or homemaker;
• The debts of the spouses;
• The financial positions of each spouse when the property is divided, as well as the suitability of awarding the family residence (or the right to reside in the home for a reasonable period of time) to the custodial parent;
• If the property was a gift from the other spouse;
• The value of the property awarded to each party;
• Whether property is awarded instead of or in addition to spousal alimony; and
• The tax consequences of the property division.

ALIMONY: The court encourages parties to become self-sufficient. Alimony may be granted if a spouse is dependent on the other spouse for support, lacks enough property or assets to provide for him or herself after the divorce, isn't able to be self-supporting by suitable employment, or is the custodian of a child whose condition makes outside employment difficult. The duration of alimony may not exceed 50% of the length of the marriage, except for marriages which have lasted 20 years or more. Factors to be considered in the awarding of alimony include:

• The financial assets of the dependent spouse;
• The age, physical, and emotional conditions of both spouses;
• The time and expense required for the dependent spouse to obtain training or education to become self-sufficient;
• The total years of marriage and the standard of living which was established while the spouses were married;
• The contributions of either spouse to the training, education, profession or earning capacity of their spouse;
• Whether either spouse has sacrificed or delayed educational, economic, or other career opportunities while married;
• The ability of the obligated spouse to provide for his or her own needs while also paying alimony; and
• Any other factor which the Court deems suitable to consider.

In Delaware, alimony ceases upon either spouse's death or the remarriage or cohabitation of the party receiving alimony, unless agreed to otherwise in writing.

NAME CHANGE: The court may include a provision in the decree, upon request or motion, for a spouse to resume the use of a maiden or prior name.

CHILD CUSTODY: In Delaware, custody of the children may be awarded to either the father or the mother, with no preference given due to the gender of the parent. If parents can come to a mutual understanding that working together to prepare a parenting plan that includes a custody agreement that adheres to Delaware's standards of putting children first, it can make the entire process much smoother.

If the parents are unable to mutually agree regarding custody and parenting matters, the court will determine legal and physical custody taking the following factors into consideration:

• The wishes of each parent concerning custody;
• The desires of the child regarding which parent he or she wants to live with;
• The relationship between the child and his or her parents, family members, persons cohabiting with either parent, any other people living in the house or people who may significantly impact the child;
• The child's bonds to the home, neighborhood, school, and community;
• The physical health and mental stability of everyone involved;
• The previous and current support, care, nurture, welfare and education of the child by both parents;
• Proof of domestic abuse including physical or sexual abuse, or threats of such, committed by one parent against the other parent, against any child living in either parent's home, or against any other adult living in the child's home; and
• The criminal history of any party or any other person residing in the household.

Visitation shall be awarded to the non-custodial parent, unless it is determined by the Court that such visitation would endanger the child. Any order by the Court denying or restricting a parent's access to a child shall specifically state the facts and conclusions in support of such a denial or restriction.

When visitation is awarded, most circumstances require the formation of an acceptable child visitation schedule. Parents can work together to create a visitation schedule, but the Court always has the final say.

CHILD SUPPORT: Both parents have a duty to support a child until he or she reaches the age of 18. If the child is attending school when he or she turns 18, the duty to support the child shall be extended until the child's high school graduation or upon turning 19, whichever occurs first.

In Delaware, child support is determined by using the Melson formula, which takes into consideration the income of each parent and the needs of the child. Either parent may file for a modification of the amount of child support due to a substantial change in circumstances.

If the parents cannot provide for the child's minimum needs, a stepparent or a person cohabitating with the custodial parent shall be under a duty to provide for those needs. This duty only exists while the child lives with such stepparent or person, and the marriage or cohabitation continues.

---

Domestic Violence Services & Shelters

Delaware Coalition Against Domestic Violence 

---