Delaware Divorce Laws

Delaware Divorce

The amount of time an individual is required to be a state resident for divorce proceedings depends on the state of residency. In Delaware, individuals are required to be residents for a minimum of six months before they are eligible to file for a Delaware divorce.

Delaware law also requires that those seeking divorce be fully separated from each other and not participate in sexual activities with one another or sleep in the same room with one another. If both individuals are state residents then divorce paperwork is to be filed at either county circuit courthouse. If only one spouse resides in the state of Delaware then the paperwork is to be filed in his or her county of residency.

Residency requirements for divorce in Delaware

In order to get a divorce in the state of Delaware one of the spouses must apply to the Family Court of the State and meet certain requirements. These are as follows:

  • One of both of the spouses must have resided in the state of Delaware for at least a period of 6 months
  • Or they should have been stationed in Delaware if they are a member of the armed forces
  • The divorce may be filed in the state where either of the spouses resides Delaware Code – Title 13 – Chapters: 1504, 1507

Delaware Grounds for Divorce

The United States stipulates that all divorce proceedings must be based on legal grounds. This means that the reasons for divorce must lie under one of the state’s divorce grounds. Upon filing for divorce the circuit court will enter a divorce decree for why the marriage has been deemed irretrievably broken and no reconciliation is possible. The four grounds for separation include separation on a voluntary basis, separation due to misconduct of a spouse, separation due to the mental illness of a spouse, or separation due to spousal incompatibility.

All efforts towards reconciling the marriage before the divorce proceedings shall be taken into consideration. This includes sleeping in the same room without sexual activity and must be completed within thirty days of petitioning the court for a divorce.

To be able to go to the courts for divorce you must meet certain requirements and these are that the marriage has broken down beyond the point of being repaired and reconciliation is not possible. The following are taken into account:

  1. Voluntary separation by the spouses
  2. Separation which was caused by misconduct
  3. Separation due to mental illness
  4. Separation caused due to incompatibility

Divorce Proceedings

If the petition for divorce has not been contested and an answer of agreement has been responded to within the twenty-day time limit, then the divorce proceedings will automatically be presented to the Family Court. Legal separation is required before filing. Separation can include living in the same house but individuals must sleep in different bedrooms to have the separation be legal.

Property division facts

Where possible property division will be made by the spouses under the marital settlement agreement, however, if this is not possible then the courts will divide the property and assets in an equitable fashion. They will consider the following:

  • The property will be processed to classify which is classed as being marital property
  • This marital property will then be valued
  • The monetary value will be shared equitably

The courts will consider the following when dividing property equitably:

  • The duration of the marriage and whether there have been previous marriages
  • The ages, health, and station in life of both spouses
  • The amount and sources of income of both parties
  • The skills and employability of the spouses
  • What opportunities there are for each spouse to obtain assets in the future
  • Whether property awarded is in lieu of alimony
  • The economic and financial status of each spouse at the time of property division

Distributing Properties

Delaware does not require that all the property obtained during the marriage be separated equally. As an equitable distribution state, Delaware law states that the property only needs to be divided fairly between the two individuals. Without regarding marital misconduct, the court has the power to assign the property to the individuals.

Several factors will be taken into consideration before the court makes any decisions. These factors include the amount of time the marriage lasted, prior marriages of the individuals, the age of the individuals, the incomes and resources of the individuals, the station and liabilities of the individuals, the employment skills of the individuals, any outstanding debts, consequences of taxes, the value of the property, the contribution to the household, capital assets, the economic statuses of the individuals, and receiving the property as a gift. The court will also consider if the property should be distributed along with the granting of alimony.

If the property was obtained as a gift to only one of the individuals, he or she has a right to keep this item. Any gifts received from each other whiles a couple may also be distributed accordingly.

Child custody

The courts would prefer that child custody issues be decided by parents. However, if this is not possible they will endeavor to set child custody through the courts. The best interests of the child will be accounted for and the courts will bear in mind the factors below:

  • The wishes of the child’s parents as to the child custody agreement
  • The wishes of the child themselves
  • The interaction between the child and their parent
  • The interaction between grandparents, other relatives, and siblings
  • The adjustment of the child to surroundings, environment, and community
  • The mental and physical health of all involved
  • Any past and present compliances by parents
  • Any evidence of abuse

Child support issues when divorcing in Delaware

The court states that both parents have equal responsibility to their children and so both of the spouses may have to contribute towards child support. When awarding child custody the following issues will be taken into consideration by the courts:

  • The financial resources of the child
  • The Standard of living the child would have had if the parents were not divorcing
  • The age of the parents and their health
  • How many earnings of the parents are
  • Sources of incomes of the parents
  • The age and health of the child
  • The financial means of the parents
  • The estate and the needs of the child Delaware Code Annotated; Title 13, Chapters 501, 514, and 701

The child support will be worked out via a child support worksheet and this will bear any of the above in mind.

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