How to file a divorce in Delaware

Getting divorced in Delaware is similar to getting divorced in most other states. A divorce for any married couple will accomplish two things: (1) severing the marital relationship, and (2) dividing assets and debts. If they have been married for a significant length of time and one of them will be unable to be self-supporting after the divorce, the issue of alimony may also arise. If there are minor children, they will need to resolve issues of child custody, visitation, and support.

Residency and where to File

In order to file for divorce in Delaware either you or your spouse must be a Delaware resident for at least six months. You may file in the Family Court in the county where either party resides.

Procedures

The most simple procedure is for an uncontested divorce. This is where you and your spouse can reach an agreement about the division of your property, and, if you have any children, what arrangements will be made for them. You begin the divorce procedure by preparing a document called a Petition for Divorce, along with various other supporting documents. One of these will be a settlement agreement, outlining the agreement you and your spouse have reached. These documents are filed with the court, and copies of them are provided to your spouse. You, and possibly your spouse, will attend a court hearing, at which time the judge will make sure that all of your paperwork is in order, perhaps ask you a few questions, and enter your Decree of Divorce. If you and your spouse do not agree, you will have a contested divorce, which will make things more complex.  

Grounds for divorce

Grounds for divorce are legally recognized reasons to get a divorce and sever the marital relationship. Delaware, like most states, has what are commonly called no-fault grounds for divorce. To get a no-fault divorce in Delaware you need to state in the Petition for Divorce that “there has been an irretrievable breakdown of the marriage and reconciliation is improbable.” This requires that you and your spouse be separated under one of the following conditions: (1) the separation was voluntary, (2) the separation is due to your spouse’s misconduct or mental illness, or (3) the separation is due to incompatibility. The separation may consist of living in the same household, as long as you and your spouse do not occupy the same bedroom and do not have sexual relations within thirty days before the court hears your case.

Property division in Delaware

Property and debts may be divided between you and your spouse in any manner you can agree upon. If the judge must decide the matter, each party to keep his or her non-marital property, which is property:

• acquired before marriage, including the increase in value of such property
• acquired by gift (except for gifts from the spouse) or inheritance
• acquired in exchange for non-marital property, or
• determined to be non-marital by written agreement of the parties.

The marital property is divided considering the following factors:

•  length of marriage
• any prior marriage
• each party’s age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities, and needs
• whether the property award is in lieu of or in addition to alimony
•  each party’s opportunity for future acquisition of assets and income
• each party’s contribution or dissipation in the acquisition, preservation, depreciation or appreciation of marital property, including the contribution of a party as homemaker, husband, or wife
• value of the property awarded to each party
•  each party’s economic circumstances at the time the property division becomes effective, including the desirability of awarding the family home, or its use, to the party with child custody
• whether the property was acquired by spousal gift
• debts of the parties and
• tax consequences.

Alimony in Delaware

Alimony is only awarded if the party seeking it: (1) is dependent upon the other party for support; (2) lacks sufficient property, including any award of marital property, to provide for his or her reasonable needs; and (3) is unable to be self-supporting through appropriate employment, or should not be required to seek employment due to responsibilities as a child’s custodian.

In determining the amount and duration of alimony, Delaware alimony law requires the judge to consider “all relevant factors” (except for marital misconduct), including:

• the financial resources of the party seeking alimony, including the property apportioned to him or her, and his or her ability to meet his or her reasonable needs independently
• the time and expense required to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment
•  the standard of living established during the marriage
•  the duration of the marriage
• the age, physical and emotional condition of the parties
• any financial or other contribution made by either party to the education, training, vocational skills, career, or earning capacity of the other party
• the ability of the other party to meet his or her needs while paying alimony
•  tax consequences
• whether either party has foregone or postponed economic, education, or other employment opportunities during the course of the marriage and
• any other factor which the court expressly finds appropriate.

If you have been married for less than twenty years, alimony may only be ordered for a period equal to half of the length of your marriage. If you have been married for twenty years or more there is no limit on the time.

Child custody in Delaware

If you and your spouse have any minor children, there will have to be a custody determination. The Delaware custody laws allow for both sole custody and joint custody, and also use the terms legal custody and residential arrangement. Legal custody refers to the authority to make major decisions for the child, and residential arrangement refers to the allocation of the child’s time between the parents. If you and your spouse cannot reach an agreement, the judge will make a decision based upon the best interests of the child, considering all relevant factors including:

• the wishes of the parties
• the wishes of the child
• the relationship of the child with parents, grandparents, siblings, and any other residents of the household or persons who may significantly affect the child’s best interests
• the child’s adjustment to home, school, and community
• the mental and physical health of all individuals involved
• compliance by both parents with their rights and responsibilities to the child
• evidence of domestic violence and
• the criminal history of any party or any other resident of the household.

Child support in Delaware

Child support is determined by the needs of the child, and each parent’s relative ability to meet those needs, as determined by the Delaware child support guidelines. You may be able to obtain forms (Form 509 and Form 509-I) from the court clerk’s office that will allow you to estimate the support in your case.

Miscellaneous matters

The wife’s maiden name, or name of a former husband, may be restored. The parties may be required to attend, and pay for, a parenting education course.

If you and your spouse agree on the major issues, an online divorce may be right for you. Otherwise, you can talk to an attorney to get advice or help filing for divorce with the LegalZoom personal legal plan.