Delaware Divorce Laws

Divorce Laws in Delaware

If you reside in Delaware and would like to file for a divorce, you must demonstrate that your marriage is ‘irretrievably broken’. This essentially means that the marriage has disintegrated beyond repair. There are four grounds under which this can be proven: voluntary separation of both parties, misconduct by your spouse, mental illness of your spouse, or incompatibility between the two of you.

Delaware divorceTo file a divorce on the basis of any of these conditions, excluding misconduct, you must have been living apart from each other for at least six months prior to filing. If you wish to pursue a divorce due to your spouse’s misconduct, however, then you may file for it at any time after separating from them. It is important to note that all divorces require evidence to support claims in court. Therefore, if you need to file for a divorce, make sure you have all the necessary documents to prove the breakdown of your marriage.

Residency requirements for divorce in Delaware

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.

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

Filing with the Court in Delaware

You must file your Delaware divorce papers in the court located in the County where you presently reside. We will provide the court information in the documents that we send to you, but some of the courts in Delaware are listed below:

Kent County Family Court:
400 Court Street, Dover, DE 19901 Phone: (302) 672-1000

New Castle County Family Court:
New Castle County Courthouse, 500 North King Street, Wilmington, DE 19801 Phone: (302) 255-0300

Sussex County Family Court:
22 The Circle, Georgetown, DE 19947 Phone: (302) 855-7400

If your County court is not listed, the information for your court will be included in the divorce papers we send you.

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 the 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 regard to 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 while a couple may also be distributed accordingly.

Child custody

In Delaware, there are two main types of child custody: legal and physical. Legal custody relates to a parent’s right to make important decisions on the child’s behalf, such as regarding education, medical treatment, and religious upbringing. In most cases, it is recommended that parents share joint legal custody so that both are actively involved in the decision-making process. When it comes to physical custody, this pertains to the primary residence of the child and who has responsibility for their routine daily care and control.

Parents can either have sole physical custody, or they may share residential arrangements if both parents live nearby. It is important to consider potential transportation issues when making custody arrangements, especially if the child participates in after-school activities. Ultimately, joint custody is strongly encouraged by Delaware law to ensure both parents stay actively engaged with their child’s growth and development.

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 children 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

All parents have a responsibility to provide financially for their children (Delaware Code Annotated; Title 13, Chapters 501, 514, and 701). When the custodial arrangement between separated or divorced couples changes, child support must be officially reestablished in order to ensure that the child’s needs continue to be met.

In Delaware, parents can appeal to the court for assistance in setting up a child support order. This can be done independently using an online form petition or with the aid of an attorney. Alternatively, the Delaware Division of Child Support Enforcement (DCSE) can lend their expertise and experience.

Upon completion of the form, it should be filed in one of the three county clerk offices in New Castle, Kent or Sussex County. The clerk then facilitates the service of the petition to the other parent and sets a hearing date for your child support case.

At the hearing, both parties must appear and present their respective sides of the story. A judge will make a final ruling taking into account any relevant considerations such as medical expenses and extra-curricular activities. If mutual agreement is reached, the judge will enter an order confirming the agreed-upon amount and frequency of child support payments. If contention persists, the judge will decide on an appropriate sum according to their own judgments.

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 divorced
  • The age of the parents and their health
  • The earnings of the parents
  • Sources of income of the parents
  • The age and health of the child
  • The financial means of the parents
  • The estate and the needs of the child

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

How are assets divided in Delaware divorce?

The state of Delaware has specific laws regarding the division of marital property in the event of a divorce. According to these regulations, courts must divide such assets equitably amongst both parties. In making this decision, numerous elements will be considered, including any domestic or financial contributions made by either party, how long the marriage lasted, and their respective earning capacities. By taking all of these factors into account, the court is able to formulate a fair distribution of marital property for both parties involved.

Non-marital assets

Under Delaware law, a party in the midst of a divorce is entitled to retain all of their non-marital assets. These include any property that was acquired through gift, inheritance, prior to the marriage, or as part of a valid agreement between the spouses such as a prenuptial agreement. Establishing the non-marital character of an asset in the midst of a divorce case is not always straightforward, and requires careful preparation and proof.

The presumption under Delaware law is that all assets acquired during the marriage are marital property, so it is up to the individual seeking to establish an asset’s non-marital status to provide evidence that supports their claim. This usually entails documentary evidence, testimony, and other relevant materials.

Difficulties can also arise when there has been a commingling of non-marital and marital funds. In these cases, tracing is necessary to demonstrate that an asset has retained its non-marital character throughout the marriage. To do this effectively, one must prove that the original source of the funds came from a gift, inheritance, or pre-marital ownership by providing estate planning documents such as wills, trusts, and gift tax returns. If these are difficult to obtain, there may still be steps taken to preserve what is rightfully one’s non-marital property if there are adequate reasons for the commingling such as estate planning or convenience.

FAQs on Divorce Laws in Delaware

What is a wife entitled to in a divorce in Delaware?

In Delaware, a spouse can be eligible for alimony and equitable distribution of marital assets upon the dissolution of marriage. The court’s decision on the matter of alimony and property division is made based on factors such as each spouse’s economic position, the duration of the marriage, and whether or not one party provided support for the other during the marriage.

Is Delaware a 50/50 divorce state?

No. Delaware operates under an equitable distribution system, meaning that any assets or debts acquired during the course of the marriage must be divided fairly between both parties regardless of who owns them. This means that the court will take into account factors like the contribution each party made to the acquisition of property as well as any inherited assets or separate property brought into the marriage.

How long do you have to be separated to get a divorce in Delaware?

In Delaware, in order to file for divorce due to separation, the parties must have lived apart for at least six months continuously prior to filing for divorce.

How many years do you have to be married to get alimony in Delaware?

Alimony may be awarded if the considered period of marriage spans longer than two years. The length of alimony depends on various factors such as the length of the marriage, any economic disputes between the spouses, etc.

What assets can’t be touched in a divorce?

Generally, any gifts or inheritances received by either spouse are excluded from equitable distribution and cannot be touched during a divorce. In addition, any advances earned through separate property before marriage, such as a pension or retirement benefits, are usually exempt from being divided between the parties in a divorce case.

Is alimony mandatory in Delaware?

No, alimony is not mandatory in Delaware. The court considers various factors before awarding alimony such as the length of the marriage, salaries of each spouse, health and age, etc. before deciding if alimony should be given and how much it should be for.

How long is spousal support in Delaware?

Spousal support typically lasts until one of the following happens: either party passes away, either party remarries, or if an agreement is reached between both parties that alimony should cease. The amount and duration of spousal support depends on several factors including but not limited to the current income and expenses of each party, marital standard of living, contributions to the marriage, etc.

How is spousal support calculated in Delaware?

The court considers several factors when determining the amount and duration of spousal support, which include current income and expenses of both spouses, past earnings growth, standard of living during the marriage, contributions to the marriage, etc. The court may also take into account losses or gains due to career opportunities sacrificed by one spouse for the benefit of the other family members during the marriage.

What happens to the house in a divorce in Delaware?

A marital home is subject to equitable division in a Delaware divorce unless it was acquired by one spouse before the marriage or came from a third party as a gift or inheritance. When determining how to divide marital property, a judge takes into account factors such as each party’s economic circumstances and contributions made to acquire the asset.

Does Delaware require separation before divorce?

Yes, in Delaware there is a legal requirement that parties must live apart for at least six months before filing for divorce due to separation. It is important to note that this provision does not apply to no-fault divorces, which are granted without proof of fault after a period of continuous separation lasting at least 90 days.

Is infidelity allowed in divorce in Delaware?

Fault-based divorces may be granted if one party has committed adultery in Delaware. However, it is important to note that courts generally do not consider adultery when making decisions on matters such as alimony or child custody.

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