Divorce provides a legal way out for spouses who are no longer happy in their marriage. The State of Delaware understands that severing your marriage or civil union is a life-changing decision and offers a straightforward process to get a divorce with ease.
In this guide, you will learn the legal requirements and process of filing for divorce in Delaware.
Divorce in Delaware Summary
Here is a brief breakdown of everything you need to know to get a divorce in Delaware.
Divorce Petition Requirements
Like the majority of US states, Delaware has a residence requirement for those seeking a divorce. Prior to filing for divorce, you or your spouse had to have lived in the state for at least six months. If they have served in the state for six months prior to filing for divorce, military personnel stationed in Delaware may also start a divorce case.
How to File A Divorce in Delaware
You must put together the petition and other required paperwork and file it with the relevant Delaware court to start the procedure.
You and your spouse may choose to submit a joint petition if there are no contentious issues between you two. If not, you can draft the divorce papers and submit them as the petitioner.
Some forms must be completed and submitted to the court, while others are just required if they are relevant to your case.
The next step is to file divorce papers at the county’s Family Court, where you or your partner currently resides.
If neither spouse meets the residency requirement, same-sex divorces may be filed in any Family Court within the state. But, you can start the divorce process in your county if you and your spouse both reside in Delaware.
Delaware divorce law doesn’t allow you to spring surprises on your partner. Prior to the start of the divorce hearing, you must inform your spouse.
You both took the marital vows, after all. Sending your spouse copies of the divorce papers and a court date that the clerk has issued constitutes serving them.
If you are the petitioning spouse, your spouse has 20 days from the time they receive your petition to respond. The only way your spouse can contest the petition is by submitting a response since Delaware Courts can grant a divorce decree without holding a hearing in court.
If no answer is submitted, the court will be forced to issue the divorce based solely on the petition.
Your divorce petition will move into a hearing if required, once it is prepared for trial. Only in contested divorces, where the other spouse challenges the petition, is a divorce hearing required.
Petitioners in an uncontested divorce have the option to forego a court appearance by asking for a paper-only divorce.
The last step of your divorce is now complete. The court will issue a divorce decree to end your partnership after the divorce hearing is over.
This completes the divorce process in Delaware.
Requirements for Filing a Divorce Petition in Delaware
Like most states in the US, Delaware imposes a residency requirement on individuals looking to get divorced. You or your partner must have resided in the state for six months or more immediately before filing the divorce petition. Military members stationed in Delaware can also begin a divorce action if they have served in the state for six months before filing for divorce.
However, this requirement does not apply to a civil union, including a same-sex divorce. Divorcing couples in this category do not need to be Delaware residents as long as you got married in the state.
Another requirement for a Delaware divorce is separation. The divorce case can only progress in court if you and your partner have been separated for at least six months. While separation includes living apart, the essential element is that no sexual relations have occurred between you. However, the law waives the separation requirement if the ground for divorce is marital misconduct.
The Delaware Divorce Process
Filing your divorce petition is the first step in the roadmap to terminating your marriage. If you are the filing spouse, you must file the correct forms at the appropriate time for the petition to meet the legal requirements.
However, you may choose to lighten the divorce burden by outsourcing this workload to an online divorce service. Online divorce services help you navigate the complex process of filing divorce papers in line with the courthouse’s guidelines.
The pathway to your Delaware divorce largely depends on the type of divorce you’re filing but generally goes as follows.
Step 1: Getting the divorce forms
To initiate the process, you must compile the petition with other necessary forms and file it with the appropriate Delaware court. If there are no contested matters between you and your partner, you may decide to file a joint petition. Otherwise, you can prepare the divorce forms and file them as the petitioner. Some forms are compulsory by the court, while some are only necessary if they apply to your situation.
Here are the required forms that you must file:
- Petition for divorce form
- Information sheet
- Vital statistics sheet
- Original or certified copy of marriage certificate
- Request for notice
- Filing fee
Other forms are only necessary if the matter they represent applies to your circumstances. For instance, you should include the Affidavit for Children Rights form if you and your spouse have minor children. If your spouse agrees with your decision to file for divorce, you will need to file a Separation Agreement detailing the terms of your divorce, such as child custody, alimony, child support, and property division. Divorce forms are available online on the Delaware Courts Judicial Branch website.
Step 2: Filing the divorce petition
The next step is filing the divorce forms at the Family Court in the county where you or your partner resides. Same-sex divorces can be filed at any Family Court within the state if neither spouse meets the residency requirement. However, if you and your spouse live in Delaware, you can begin the divorce action in your county.
You may submit the forms personally at the clerk’s office. Alternatively, you can consider filing by email or sending the petition alongside other required forms to the Delaware court through US mail. To file by email, send the prepared divorce forms to FC_DivorceAncillary@delaware.gov. You must also pay a filing fee to proceed with your petition.
Step 3: Serving your spouse
Delaware divorce law doesn’t allow you to spring surprises on your partner. You must notify your spouse before a divorce hearing can occur. After all, you both took the marital vows. Serving your spouse involves sending them copies of the divorce papers and a court summons issued by the clerk.
You may serve your spouse the divorce papers via a mailing service, newspaper publication, or other means approved by the court. If your spouse’s whereabouts are unknown, the court requires you to file an Affidavit that a Party’s Address Is Unknown form. Completing this form means you are unaware of the current address of your spouse, and you have no way to get such details.
Step 4: Waiting for your spouse’s answer
If you are the filing spouse, your partner has the right to respond to the petition within 20 days of receiving your petition. Since Delaware Courts can issue a divorce decree without a hearing in court, the only opportunity your spouse has to oppose the petition is by filing an answer. Failing to file an answer will leave the court no option but to rely on the petition to grant the divorce.
The respondent can agree to or contest the petition by filing an answer. If contested matters exist between the couple, the respondent can also request that the court gives final decisions on them.
Filing a counterclaim with the answer means that the respondent has also filed a divorce on different terms. In this situation, the initial petitioner has 20 days to respond to the counterclaim.
Step 5: The divorce hearing
When your divorce petition becomes trial-ready, the case will proceed into a hearing if necessary. A divorce hearing is only mandatory in a contested divorce, that is if the other spouse contests the petition. In an uncontested divorce, petitioners can waive the court hearing by requesting that the divorce be decided on papers.
The petitioner has to file a Request to Proceed without Hearing and deliver a copy to the respondent. Delaware law stipulates that only partners that have not had any sexual relations 30 days before the court granting the divorce can file for this. While you and your spouse can live in the same house, having sexual relations may result in loss of eligibility for a divorce without hearing.
If the petitioner wants a divorce hearing or contested matters exist, both parties will receive a notice of hearing when the divorce gets to trial. A judge will deliberate on contested issues in the hearing and review the separation agreement if any exists.
Step 6: The divorce decree
This is the final lap of your marital dissolution. The conclusion of the divorce hearing will result in the judge issuing a divorce decree to end your union. The decisions on all the matters reviewed by the judge are enforced after the proceedings.
If you need help with your divorce . . .
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Frequently Asked Questions
How long does it take to get a Delaware divorce?
The duration of a divorce in Delaware varies depending on the circumstances of your divorce. However, Delaware law provides a specified time for the conclusion of some parts of the process. For instance, the respondent must file an answer within 20 days of receiving a copy of the divorce petition.
Moreover, the divorce petition must be trial-ready before you can continue with the remaining process. A Petition for Divorce is trial-ready when it meets jurisdictional requirements. Among the requirements is that the petitioner must serve the other spouse with a copy of the petition and other forms filed. The spouses must also have been separated for no less than six months before the court can grant the divorce. This is only necessary for divorces based on no-fault grounds due to irreconcilable differences or an irretrievably broken marriage.
The separation requirement is dispensed with if the petitioner is filing on a fault-based ground. Note that the spouse raising allegations of misconduct must prove it in court. Lastly, spouses with minor children must undergo a mandatory parent education class and get a certificate of completion. Enrolling in the class is advisable because the court will not proceed with the divorce process until the divorcing spouses have completed the parent education class.
An uncontested divorce with no court hearings is likely to take the shortest time possible and may be completed in as little as 180 days. Contested divorces usually take longer, as the court has to decide on essential terms, especially where the divorcing spouses disagree on marital property division, child custody, and parenting time.
What are the different types of divorce in Delaware?
You can end your marriage or civil union in Delaware through a contested or uncontested divorce. Whether your spouse agrees on the issues that may arise or not makes a divorce contested or uncontested.
An uncontested divorce happens when your spouse files no objection to your divorce petition. Typically, the court will proceed with the divorce if the other party fails to file an answer within 20 days after being served a copy of the petition. Similarly, the divorce remains uncontested if your spouse files an answer agreeing to the divorce. In either case, the petitioner may apply to the court for the divorce to be heard on the filed paperwork without resorting to a trial and court hearings.
A contested divorce in Delaware happens when your spouse challenges the divorce petition by filing an Answer within the appropriate time. The primary feature of a contested divorce is that you and your spouse disagree on the terms governing the untying of your marital knots. The court schedules a hearing automatically after the response. Both sides have the opportunity to convince the court to decide in their favor. Contested divorces are common in Delaware, and the court may have to deliberate on divorce matters, such as child custody, spousal support, and child support.
Do I need an attorney to get a divorce in Delaware?
No law requires you to hire an attorney for your Delaware divorce. However, you may consider getting legal advice, especially if your divorce is likely to be contested. As the filing spouse, you may also consider using the services of a family law attorney or reliable online divorce service to file the divorce petition. Getting an attorney means having to pay attorney fees for the services rendered.
Alternatively, you can represent yourself during the proceeding and get resources from the Family Court to assist you. Check out the Divorce/Annulment Instruction Packet to learn more about filing a Petition for Divorce. Also, the Answer to Petition for Divorce/Annulment Instruction Packet provides information on responding to a petition.
Do I have to prove separation in a Delaware divorce?
Separation is one of the requirements to obtain a divorce decree in Delaware. The state defines separation as a situation where you and your spouse live separately and apart for the required period.
When you apply for a divorce, the court requires a minimum separation period of six months between you and your spouse before issuing the divorce decree. Separation is essential in the divorce process. It is one of the jurisdictional requirements for the court to consider your petition for divorce trial-ready.
To prove separation, the petitioner must include the date of separation in the petition. The date of separation listed on the petition is what the court staff will use to determine when the divorce can be finalized. If the separation period is below six months, you will have to wait till it reaches six months before the court can decide on the divorce.
However, you are only required to prove separation in a no-fault divorce. If you’re filing for a divorce on the grounds of marital misconduct, then you don’t have to prove separation. All you need to prove is the fault that inspired your petition (the proverbial last straw or any of the straws, actually).
Can I get a divorce in Delaware if I was married in another state?
Fortunately, Delaware law does not condition getting a divorce on where you took your marital vows. You may file for divorce in Delaware if you fulfill the residency requirement. Fulfilling this requirement means that you or your spouse have lived in the state for at least six months before beginning the divorce action.
For same-sex marriages and civil unions in general, a dissolution will be granted in Delaware if the union takes place in the state. The residency requirement does not apply in such situations.
Is spousal fault necessary for the dissolution of marriage in Delaware?
No, proof of spousal fault is not compulsory for a dissolution of marriage in Delaware. However, the state is not exclusively a no-fault divorce state and allows you to leave your partner on fault-based grounds.
A no-fault divorce occurs when the court establishes the marriage is irretrievably broken due to voluntary separation or irreconcilable differences. In this case, neither spouse takes blame for the failed marriage or union.
However, a petitioner may file for divorce because of spousal misconduct. In this case, the other spouse can file an answer to oppose the misconduct allegation, and the court will schedule a hearing. Grounds for spousal misconduct include the following:
- Separation due to the mental illness of the respondent
- Mental or psychological abuse
- Domestic violence
- Desertion or wilful refusal to perform marriage obligations by a spouse
Delaware courts may also enter a decree of annulment of a marriage under the following conditions:
- Either spouse could not legally consent to the marriage due to age or mental incapacity
- One of the spouses cannot physically consummate the marriage, and the other partner was unaware of this before the marriage
- One of the spouses was below the legal age for marriage and still does not consent to the marital relationship after reaching the legal age
- The marriage was obtained by a fraudulent act or depiction by one spouse, which encouraged the other spouse to enter the marriage
- One or both spouses were coerced into the marriage
- If the marriage is incestuous, as determined by the Delaware Code
In these situations, the court enters a decree of annulment. The effect of an annulment is that the marriage is treated like it never existed, and both parties are free to move on with their lives. However, a spouse seeking annulment must prove the condition on which they want the court to grant such an order.
Who gets child custody in a Delaware divorce?
If you have minor children, the court will hold off on granting your divorce until adequate provisions have been made for the children. One of those provisions is shelter. Child custody causes lots of problems for divorcing couples worldwide, which is why courts prefer making custody orders before the marriage is dissolved. However, you may still apply for child custody after your divorce if you believe your spouse’s lifestyle endangers the kids or fails to cater to their needs adequately.
Child custody is divided into legal and residential custody in Delaware. Legal custody refers to the right to make important life decisions for and on behalf of the child, while residential custody deals with who the child lives with.
Interestingly, spousal fault generally has no effect on child custody except where there is a history of domestic violence. The primary consideration for determining child custody in Delaware is the best interests of the child. The best interests of the child are ascertained through the following factors:
- The wishes of the child’s parent or parents as to his or her custody and residential arrangements
- The wishes of the child as to his or her custodian or custodians and residential arrangements
- The interaction and interrelationship of the child with his or her parents, grandparents, siblings, or persons who may significantly affect the child’s best interests
- The child’s adjustment to his or her home, school, and community
- The mental and physical health of all individuals involved
- Past and present compliance by both parents with their rights and responsibilities to their child under §701 of this title
- Evidence of domestic violence
- The criminal history of any party or any other resident of the household, including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense
The law also precludes the court from considering the sex, gender, or conduct of a spouse in making child custody orders. The court may also at its discretion invite therapists to conduct interviews with the parents and the child to help determine who is better suited to legal and residential custody. The recommendations of the therapists are not binding on the court and are only advisory in nature. Finally, the court may listen to the child to determine who the child has a stronger relationship with.
What factors influence alimony and child support payments?
Alimony refers to periodic monetary payments made by one spouse to the other after the divorce. This may be court-ordered or negotiated by the parties in a separation agreement. Any party can file for alimony during the divorce process. To qualify for court-ordered alimony, the filing spouse has to prove their need for support and that the paying partner has no other court-ordered payment obligation. There must also be proof that the dependent spouse lacks the means to self-support and cannot meet reasonable needs.
In making an alimony order, the court considers the following factors:
- The length or duration of the marital relationship
- The time and monetary costs required for the requesting spouse to seek education or training necessary for adequate employment
- Tax consequences
- The standard of living spouses maintained during the marriage
- The contribution made by either spouse towards the personal advancement of their partner
- The dependent spouse’s financial resources, including marital or separate property, and ability to independently meet their essential needs
- Spouse’s education, training, skills, profession, or income during the marriage
- The capability of the paying spouse to meet essential needs while paying alimony
- The age of each partner
- The mental and physical health of both partners
- If either spouse previously declined self-advancement opportunities while being married
- Other factors that the court decides to consider
On the other hand, Delaware law requires parents to support their minor children until they turn 18 or 19 (if still in high school). In calculating child support payments, the following factors come into play:
- Cumulative earnings and income of both parties
- Child support payments of other children, if any
- Health insurance costs, pension plans, union levies, and disability insurance
- If necessary, daycare and school expenses are applicable for the parties to work
- The total overnights that the child spends with each parent annually
What factors are considered in property division?
Property division in a Delaware divorce is based on equitable terms. While you and your spouse may agree on a sharing formula in a separation agreement, either party can also request that the court divide marital assets during the divorce hearing.
The duty of the court will be to assign and distribute marital property equitably after considering these factors:
- The duration of the marriage
- If either spouse was previously married
- The liabilities of each spouse
- Economic situations of each spouse after the property division takes effect, including assigning the family home or the right to live there to the spouse with custody of the child
- Whether the assigned property is in place of alimony or inclusive of alimony
- The contribution of each spouse in the acquisition, maintenance, devaluation, or growth of the marital property, including the role of each spouse during the marriage
- The value of the property assigned to each spouse
- The prospect of each spouse acquiring more property
- Properties that third parties gift to either or both spouses
- Each spouse’s age, health condition, income sources, vocational skills, debts, and personal needs
- Tax consequences
Sadly, there’s no manual to having a long-lasting, divorce-free marriage. As sad as it may be to leave your partner, I hope this divorce manual guides you to certainty and in record time too.