Marital Legal Separation

Note: This summary is not intended to be an all-inclusive discussion of the law of separation agreements in Delaware, but does include basic and other provisions.

General Summary: Separation and Property Agreements may be entered into before a divorce is filed to be effective immediately, or may be entered into after the divorce is filed to settle a case.

Generally treated as contracts between the parties, the court will examine the provisions of the Agreement, with the exception of child support, under contract principles.

The stipulation, merger, or incorporation of the parties' agreement into a court order does not divest that agreement of its contractual nature. Unlike a prior judicial determination of alimony, the Family Court cannot modify an agreement between the parties regarding alimony, pursuant to the "real and substantial change" statutory standard.

Statutes: Title 13 Domestic Relations
Chapter 5 Desertion and Support

Jurisdiction in Family Court; termination of chancery jurisdiction:
(a) The Family Court of the State shall have exclusive original jurisdiction over all actions arising under this chapter. The Court shall have exclusive jurisdiction over the construction, reformation, enforcement and rescission of agreements made between future spouses, spouses and former spouses concerning the payment of support or alimony, the payment of child support or medical support, the division and distribution of marital property and marital debts and any other matters incident to a marriage, separation or divorce. The Court shall have jurisdiction to resolve any issues resulting from the construction, reformation, enforcement or rescission of an agreement. In this regard, the Court shall apply the statutory factors set forth in Chapters 5, 6 and 15 of this title. The Court shall have and exercise all other jurisdiction and powers relating to support and separate maintenance actions heretofore possessed by the Chancellor or the Court of Chancery of the State. § 507.

Jurisdiction; residence; procedure:
(a) The Family Court of the State has jurisdiction over all actions for divorce and annulment of marriage where either petitioner or respondent, at the time the action was commenced, actually resided in this State, or was stationed in this State as a member of the armed services of the United States, continuously for 6 or more months immediately preceding the commencement of the action.
(b) The procedure in divorce and annulment shall conform to the rules of the Court where the same do not contravene this title. § 1504.

Decree in divorce or annulment proceedings; costs; notice of entry; effect on mentally incompetent spouse; effect on subsequent petitions; temporary alimony:
(a) A decree granting or denying a petition for divorce or annulment is final when entered, subject to the right of appeal. An appeal that does not challenge the decree of divorce or annulment, but challenges only rulings with respect to relief awarded under other sections of this chapter, or other matters incidental or collateral to such decree, shall not delay the finality of the decree of divorce or annulment, and the parties may remarry while the appeal is pending.
(b) Whenever the Court enters a decree granting a petition for divorce or annulment, a certified copy of such decree shall be made available to the parties within 30 days after such ruling; but following a contested proceeding, such a copy of the decree shall only be made available to the parties 30 days after such ruling, and after the furnishing of such proof as the Court may require that no appeal challenging the decree of divorce or annulment is pending.
(c) In the decree granting or denying a petition for divorce or annulment, or by separate order or orders preceding or following such decree, the Court shall dispose of all other prayers for relief, where appropriate under the facts and law; but an application for such relief and a hearing thereon must be presented in the petition or response, or by motion after notice to the other party prior to the entry or denial of such decree.
(d) Court costs, including any fee for the services of an attorney allowed by the Court, shall be taxed by the Court at or about the time of the granting or denial of the decree of divorce or annulment, at the time of disposition of other prayers for relief in accordance with subsection (c) of this section, following the disposition of an appeal, or at such other time or times as the Court may deem appropriate.
(e) The Clerk of the Family Court shall give notice of the entry of a decree of divorce or annulment: (1) If the marriage is registered in this State, to the clerk of the peace of the county where the marriage is registered and such clerk shall enter the fact of divorce or annulment in his or her records; or
(2) If the marriage is registered in another jurisdiction, to the appropriate official of that jurisdiction, with the request that he or she enter the fact of divorce or annulment in the appropriate record.
(f) No decree that may enter shall relieve a spouse from any obligation imposed by law as a result of the marriage for the support or maintenance of a spouse adjudicated to be mentally incompetent prior to the decree, unless such spouse has sufficient property or means of support.
(g) A decree denying a petition for divorce or annulment shall not foreclose a subsequent petition for such relief if the subsequent petition involves factual or legal premises not directly or by necessary implication decided by the decree on the former petition.
(h) Every decree granting a petition for divorce or annulment shall include the social security number of each party. § 1518.

Modification or termination of decree or order; termination of alimony; enforcement of alimony order:
(a) A decree or separate order entered under § 1518 of this title may be modified or terminated only as follows:
(1) Support for a child, only as provided in Chapter 5 of this title, or otherwise;
(2) Custody and/or visitation of a child, only as provided in Chapter 7 of
(3) Property disposition, only upon a showing of circumstances that would justify the opening or vacation of a judgment under the Rules of the Superior Court of this State;
(4) Alimony or any other relief awarded, only upon a showing of real and substantial change of circumstances.
(b) Unless otherwise agreed by the parties in writing and expressly provided in the decree, the obligation to pay future alimony is terminated upon the death of either party or the remarriage of the party receiving alimony.
(c) Any alimony order entered pursuant to § 1512 of this title shall be enforced in this State exclusively by the Family Court in the county wherein the respondent resides or is found, or in the county where petitioner resides if respondent does not reside and cannot be found in this State, regardless of whether such petitioner was the divorce action, and such Family Court, on proper showing of either of such petitioner or such respondent or on its own motion, may modify or terminate support obligations formerly decreed by the Superior Court. § 1519. Case Law:

It is settled Delaware law that, in the absence of a provision in a separation agreement to the contrary, an unfavorable change in financial circumstances is not a valid defense to specific performance of the agreement." Dumel v. Dumel, Del. Ch. , 213 A.2d 859 (1965).

Parents are not precluded from contracting with respect to the support of their children, but they may not, by agreement, prevent in futuro the re-examination by a court of the adequacy of the support for minor children agreed upon by the parents. It is only when the parents' contract is consistent with the welfare and best interests of the child that the agreement for support may be given controlling effect. In re Two Minor Children, 3 Storey 565, 173 A.2d 876 (Del. 1961).

Regarding alimony awards, the stipulation, merger, or incorporation of the parties' voluntary agreement into a court order does not divest that agreement of its contractual nature. 13 Del. C. § 1519(b). Unlike a prior judicial determination of alimony, the Family Court cannot modify an agreement between the parties regarding alimony, pursuant to the "real and substantial change" statutory standard enunciated in 13 Del. C. §1519(a)(4). Rockwell v. Rockwell , 681 A.2d 1017 (Del.Supr.1996).