Delaware Divorce Checklist

Divorce - State Law Summary - Delaware

Notes: This summary is not intended to be an all-inclusive summary of the laws of divorce in the State of Delaware, but does contain basic and other procedures.

Grounds for divorce

A decree of divorce will be granted in the State of Delaware upon a finding that the marriage is irretrievably broken and that reconciliation is improbable. A marriage is irretrievably broken where it is characterized by:

1. Voluntary separation;
2. Separation caused by the respondent's misconduct;
3. Separation caused by the respondent's mental illness;
4. Separation caused by incompatibility. Tit. 13 Sec. 1505

Waiting period

No divorce shall be granted until after the parties have been separated for a period of six months.

Residency requirements

At least one of the parties to the action for divorce must have resided within the State of Delaware for at least six continuous months immediately prior to the commencement of the action for divorce. The petition may be filed in the county where either party resides.

Name of court and title of action/parties

An action for divorce filed within the State of Delaware is filed with the Family Court. The title of the action initiating the divorce proceeding is a Petition for Divorce, while the title of the action granting the divorce is referred to as the Decree of Divorce. The party filing the action is called the Petitioner, while the other party to the divorce is referred to as the Respondent.

Simplified divorce proceeding

Although there is no simplified divorce proceeding in the State of Delaware, the respondent may file an answer and waiver of service of process, thereby dispensing with further service and notice issues in the proceeding. If the divorce is uncontested, the court shall rule on the petition at a hearing which only the petitioner need attend and testify.

Legal separation

There are no provisions within Delaware State law that recognizes legal separation.

Conciliation/mediation

In cases involving minor children of the marriage, the court shall order that the parties participate in a Parenting Education Course designed to educate the parties on the impact of divorce on children. In addition, if the divorce proceeding is contested, the court may continue the proceeding with the consent of the parties for up to sixty days so that the parties may seek counseling.

Alimony

The court may award alimony to either party. Unless the parties were married for 20 years or longer, the term of an award of alimony shall not exceed one-half the term of the marriage. Any person awarded alimony has a continuing obligation to make good faith efforts to seek appropriate vocational training and employment, unless the court specifically finds that it would be inequitable to require the party to do so. Unless otherwise agreed in writing, the obligation to pay alimony terminates upon the death of either party or the remarriage or cohabitation of the party receiving alimony. The court will award alimony, without regard to fault, in such amount and for such times as the court deems appropriate, after consideration of the following factors:

1. The financial resources of the party seeking alimony;
2. The time and expense necessary to acquire sufficient education and training to enable the party seeking alimony to find appropriate employment;
3. The standard of living established during the marriage;
4. The duration of the marriage;
5. The age, physical and emotional condition of both parties;
6. Any financial or other contribution made by either party to the education, training, vocational skills, career or earning capacity of the other party;
7. The ability of the paying spouse to meet his needs while paying alimony;
8. Tax consequences;
9. Whether either party has foregone or postponed economic, education, or other employment opportunities during the course of the marriage;
10. Any other factor the court deems just and appropriate to consider. Tit. 13 Sec. 1512

Distribution of property

Delaware is an equitable distribution state, which means that the court will divide the marital property as it deems equitable and just among the parties, after setting aside to each spouse that party's separate property. Factors the court will consider in distributing the marital property include:

1. The length of the marriage;
2. Any prior marriage of the parties;
3. The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each party;
4. Whether the property is awarded in lieu of or in addition to alimony;
5. The opportunity of each party for future acquisition of capital assets and income;
6. Each party's contribution to the acquisition, preservation, depreciation, dissipation or appreciation of the marital property;
7. The value of the property set aside to each spouse;
8. The economic circumstances of each party at the time the division of property is to take effect;
9. The debts of the parties;
10. Tax consequences. Tit. 13 Sec. 1513

Child Custody

The court shall determine the custody of any minor children of the marriage based upon the best interests of the child. In determining the child's best interests, the court shall consider the following factors:

1. The wishes of the parents;
2. The wishes of the child;
3. The interaction and interrelationship of the child with parents, grandparents, siblings and any other person whose relationship significantly affects the child;
4. The child's adjustment to home, school and community;
5. The physical and mental health of all parties;
6. Evidence of domestic violence.

Each parent has an equal right to receive all records of the child, such as school, medical or dental records. In addition, each parent has right to reasonable access to the child by telephone or mail. Tit. 13 Sec. 722

Child support

Each party has a duty to support any minor children of the marriage. In determining the amount of support to be awarded, the court will consider many factors, including:

1. The health, relative economic condition, financial circumstance, income, including the wages, and earning capacity of the parties, including the children;
2. The manner of living to which the parties have been accustomed when they were living under the same roof;
3. The general equities inherent in the situation. Tit. 13 Sec. 514

Name change

Upon request, the court may order that a party may resume the use of any former or maiden name. Tit. 13 Sec. 1514