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Delaware Divorce Laws

The court will determine (should you and your spouse be unable to agree on a Parenting Plan or Child Visitation Schedule) the particulars about child custody of any minor children of the marriage, and will base all decisions on the 'best interests of the child'.

 

Worried about a custody battle? Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

In determining the child's best interests, the court will consider the following factors:

• The wishes of the parents,
• The wishes of the child,
• The interaction and interrelationship of the child with parents, grandparents, siblings and any other person whose relationship significantly affects the child,
• The child's adjustment to home, school and community,
• How well each parent has in the past and currently satisfies their parental rights and responsibilities with respect to their children,
• The physical and mental health of all parties; and,
• Evidence of domestic violence.

Delaware divorce laws consider the father and mother to be the joint natural guardians of their minor child and are equally responsible for the child's support and welfare. Each parent has equal rights and duties. Should there be a DE divorce, divorce settlement or separation agreement, all Delaware child custody issues must be resolved and approved by the court. In a DE divorce, any child who is the subject of a child custody, visitation, or other related proceeding where the Division of Family Services is a party should have a guardian ad litem appointed by the court to represent the best interests of the child. The court may also appoint an attorney to represent the minor's interests.

Access to your child's records

Each parent has the right to receive, on request, from the other parent, all material information concerning the child's progress in school, medical treatment, significant developments in the child's life, school activities and conferences, special religious events, and other activities in which parents may wish to participate. Each parent and child also has a right to reasonable access to the other by telephone or mail. However, the Court can restrict the rights of a child or a parent if it finds, after a hearing, that the exercise of such rights would endanger a child's physical health or significantly impair his or her emotional development.

 

 

Download Delaware Divorce Forms

[Delaware Code - Title 13 - Chapters: 722]

A request for a marriage annulment must be treated in the same fashion as with a divorce (filing procedures). If the Petition for marital annulment is contested, in other words the person responding to the petition challenges material information in the petition by filing an Answer, the matter will automatically be scheduled for a hearing. If the person responding to the petition does not file an answer within 20 days of receiving the Petition for annulment OR files an answer agreeing with the request for a Delaware divorce, the petition is uncontested.

1. If the petition is uncontested the Petitioner, the person filing the petition, can choose what type of divorce proceeding he/she would like to have. The Petitioner may request that the Court decide the Petition for annulment based solely on the papers that are filed by both sides, without the parties appearing in Court for a hearing; OR The Petitioner may choose to have the Court decided the Petition for Annulment after holding a hearing which the Petitioner must attend and the Respondent may attend. Grounds for an annulment include:
   • A party lacked capacity to consent to the marriage at the time of the marriage,
   • A party lacked the physical capacity to consummate the marriage,
   • A party was less than legal age (underage),
   • One party entered into the marriage in reliance upon a fraudulent act or representation,
   • One or both parties entered into the marriage under duress or one or both parties entered into the marriage as a joke or dare.

For in-state civil unions: If you and your spouse do not reside in Delaware, and your state of residence does not allow civil unions to be dissolved and your civil union was solemnized in Delaware, you may file for an annulment in this state. This exemption to the residency requirement does not apply to dissolutions (divorces).

Should the court decree an nullity (an annulment), it will have the effect of declaring that no marriage had ever come into being.

[Delaware Code - Title 13 - Chapters: 1506, 101, 1301 ]

Delaware child support laws require a mediation conference for either a divorce or a separation proceeding. A mediator will use the Delaware Child Support Formula to calculate the child support amount, and assist the parents in arriving at an agreement. If a settlement agreement cannot be reached, an interim or temporary order may be issued. A hearing then will be scheduled before a Commissioner. Delaware divorce laws provide that in cases where a marriage annulment is sought, and there are children of that marriage, that those children be afforded the same rights and protections, including that the children are not considered illegitimate offspring of the parents.

A Delaware divorce court will consider the following before awarding child support:

• the financial resources of the child,
• the standard of living the child would have enjoyed if there had been no divorce,
• the age and health of the parents,
• the earning capacity of each parent,
• the amount and sources of income of each parent,
• the age, health, or station of the child,
• the estate and needs of the child,
• the relative financial means of the parent.

A word of caution about acting pro se (doing your divorce without a divorce lawyer): Delaware divorce laws provide that you can represent yourself. If you decide to do so, it is called 'pro se' representation. 'Pro se' means 'for one’s own behalf' or 'appearing for oneself.'

Representing yourself may take a lot of time, may be difficult and may be confusing. Be aware that even though you are not an attorney, the Family Court will expect you to follow the same rules and regulations that the attorneys have to follow in order to get a Delaware divorce. The Court will not allow you to skip any procedures because you did not know how or when to do something. The Family Court has developed simple, straightforward packets that contain instructions explaining what forms you need to file, how to complete the forms and sample forms to which you can refer.

The Court also provides answers to frequently asked questions (called FAQ's) and other informational materials to help you with the divorce process. The same informational materials can be used if you would like to have your marriage annulled. Laws covering Delaware child support mandate that both parents have a duty to support the child until the child is 18 years of age, or, if the child is still in high school until the child graduates or attains age 19, whichever occurs first. Delaware uses a child support formula to set the amount of the child support order. The formula is based on both parents’ incomes and the needs of the child and is applied uniformly to ensure that the amount will be fair and the children will receive adequate support.

Adjustments to child support amounts must be applied for to the court, where the burden of proof to justify the adjustment falls to the parent requesting the judgment.

Delaware child support ends when the minor child reaches 18 years of age; provided, however, that if a child over 18 is still enrolled in high school, then child support terminates when the child receives a high school diploma or attains the age of 19, whichever event first occurs. Arrears or past due child support doesn't terminate until it has been fully paid.

 

 

[Delaware Code - Title 13 - Chapters: 501, 514, 701]

Before you file for divorce, you and your spouse must have gone through a period of marital separation. To effect a legal separation, you and your spouse must not share the same bedroom or have sexual relations with one another, except for attempts at reconciliation. A separation can still occur if you live in the same house so long as you do not share the same bedroom with your spouse or have sexual relations with your spouse. To divorce in Delaware, you must not have shared a bedroom or had sexual relations with your spouse at any time within the 30 days just prior to the day the Court hears the petition for divorce.

The Court will not proceed with the divorce process until you and your spouse have completed a separation of at least 6 months, unless you are filing for divorce on the grounds of misconduct. Some of the grounds of misconduct include: physical, mental or psychological abuse, adultery and desertion. If you are filing on the grounds of misconduct, then you do not have to complete a separation for any specified period of time. However, be aware that you must prove any allegations of misconduct by presenting evidence of the misconduct to the Court before a divorce will be granted on this ground.

Also, if you and your spouse have children together, you must attend a Parent Education Class. If your children are between the ages of 8 and 16, they must also attend the Parent Education Class. The Court will not proceed with the divorce process until all of the required certificates of completion from the Parent Education Class have been submitted to the Court. If you have children, you should enroll in the Parent Education Classes early to ensure that the divorce process is not delayed because of your failure to take the Parent Education Class.

 

 

You will have an opportunity to arrive at a divorce settlement with your spouse. Should you be unable to, the court will impose its settlement based on the concept of equitable distribution. The court will equitably divide, distribute and assign the marital property between the parties without any regard to marital misconduct. Considerations for the divorce court include:

• The length of the marriage,
• Any prior marriages,
• The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties,
• Whether the property settlement is in lieu of or in addition to alimony,
• The opportunity of each for future acquisitions of capital assets and income,
• The contribution or dissipation of marital property, including the contribution of a party as homemaker, husband, or wife,
• The value of the property set apart to each party,
• The economic circumstances of each party,
• Whether the property was acquired by gift,
• The debts of the parties, and
• Tax Consequences.

Delaware Marital Property means: all property acquired by either party subsequent to the marriage except:

• Property acquired by an individual spouse by bequest, devise or descent or by gift, except gifts between spouses, provided the gifted property is titled and maintained in the sole name of the donee spouse, or a gift tax return is filed reporting the transfer of the gifted property in the sole name of the donee spouse or a notarized document, executed before or contemporaneously with the transfer, is offered demonstrating the nature of the transfer,
• Property acquired in exchange for property acquired prior to the marriage,
• Property excluded by valid agreement of the parties,
• The increase in value of property acquired prior to the marriage.

Lock up the assets

If you think your spouse might try to hide assets, or spend them, we suggest you file a petition for a financial temporary restraining order. This order prevents liquidating assets or spending money beyond the basic necessities of daily living. You might first consider allocating enough funds to see yourself through, because the restraining order will apply to you too.

[Delaware Code - Title 13 - Chapters: 1504, 1513]

The Court may award temporary alimony to a dependent party during the course of an action for divorce or annulment. The party may be awarded alimony only if he or she is a dependent party after consideration of the following:

• Is dependent upon the other party for support and the other party is not contractually or otherwise obligated to provide that support after the entry of a decree of divorce or annulment,
• Lacks sufficient property, including any award of marital property made by the Court, to provide for his or her reasonable needs, and
• Is unable to support himself or herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that he or she not be required to seek employment. The alimony order (also known as a spousal support order or a maintenance order) may be granted without regard to marital misconduct.

The court will consider the following:

• The financial resources of the party,
• The time necessary and expense required to acquire sufficient education or training,
• The standard of living established during the marriage,
• The length of the marriage,
• The age, physical and emotional condition of both 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,
• Any foregone or postponed economic, education or other employment opportunities during the course of the marriage, and
• Any other factor which the Court expressly finds is just and appropriate to consider.

A person can be eligible for alimony for a length of time not to exceed 50% of the term of the marriage with the exception that if a party is married for 20 years or longer, there will be no time limit as to his or her eligibility. An example would be if you were married 18 years; alimony could not be for more than 9 years. Should one of the parties waive or release his or her right to alimony (in writing), they will be unable to regain that right.

Delaware divorce laws stipulate that death terminates the obligation to pay alimony unless otherwise agreed. Remarriage or cohabitation also terminates spousal support obligations.

In order to appeal a court order for spousal support, the appellant must file the necessary papers with the proper appellate court within 30 days from the date of the final decree.

[Delaware Code - Title 13 - Chapters: 1512]

Under Delaware divorce laws, parents are joint natural custodians of their children. When parents live separate and apart, either or both parents may file a petition in Family Court asking that the court award custody to him/her. If a parent desires to have a specific contact schedule with the child, a Petition for Visitation (form #350) may be filed. When a Petition for Custody (form #345), or Petition for Visitation (form #350) is filed in Family Court, a Preliminary Injunction is served immediately on the petitioner and on the respondent with service of the petition. This Preliminary Injunction contains two orders:

• Neither parent will permanently remove the child from the State of Delaware while the custody or visitation proceedings are pending in the Court without the permission of the other parent or the Court,
• Both parents are ordered to take a 'Parenting Education Class'.

At the mediation hearing, the mediator will assist the parents in coming to an agreement or defining the issues which the parents cannot agree upon. The mediator will inform both of the parties of the language and content of the Standard Visitation Guidelines used by the Court.

If the parents are able to settle on a Parenting Agreement, a consent order will be completed and signed by the parents. If the parents are not able to come to a full agreement on a co-parenting plan and cannot agree on a Child Custody Schedule, the mediator will recommend a contact schedule which will be in place until the Court hearing. If mediation is not successful, the petitioner must complete Parenting Education and the petition will then be assigned to a Judge for a full hearing at a later date.

After an order for custody or situation has been entered, if either parent files a Motion and Affidavit to Modify Custody or a Petition for Visitation Modification, the petition will again be referred to mediation (unless bypassed because of a finding of domestic violence or no contact order). If no agreement is reached at mediation, the petition would be referred to a Judge after the petitioner has completed the Parenting Education Class (if not previously completed).

Be aware that you have to guide your side of your DE divorce. Don't assume that your attorney will think of everything. You set the course; your lawyer navigates. If you anticipate any problems with custody or visitation, perhaps see a custody battle in your future, we suggest you own Child Custody Strategies. 

 

 

The court will grant a divorce whenever it finds that the marriage is irretrievably broken and that reconciliation is improbable. Delaware divorce laws define 'irretrievably broken' when the relationship is characterized by:

 

• Voluntary separation,
• Separation caused by respondent's misconduct,
• Separation caused by respondent's mental illness,
• Separation caused by incompatibility.

After the filing of a petition for a DE divorce or annulment (which must include grounds), a preliminary injunction will be issued against both parties to the action, prohibiting them from:

• Transferring or concealing any property except in the usual course of business or for the necessities of life,
• Molesting or disturbing the peace of the other party,
• Removing a child of the parties if residing in Delaware from the jurisdiction of this court without the prior written consent. of the parties,
• Utilizing credit cards or otherwise incurring any debt for which the other party is or may be liable except in connection with the marital litigation or necessities of life for the benefit of the party or the parties' minor children. Delaware code will make you pay a steep price if you run up unrelated charges.

[Delaware Code - Title 13 - Chapters: 1505]

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

 

 

Worried about a custody battle? Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

 

[Delaware Code - Title 13 - Chapters: 1504, 1507]

Six months from filing must have elapsed before a divorce may be granted. This is the old story where the government wants to protect us from ourselves, putting into place a minimum waiting period in case the divorce petition was filed amidst emotional chaos and clearer heads may prevail later. Kind of nice that those Delaware divorce laws are looking out for you, huh? 

A decree of divorce is subject to appeal if one party files the appeal within 30 days from the date of judgment. No waiting period for remarriage exists, and parties are free to remarry after the divorce decree.

 

 

 

[Delaware Code - Title 13 - Chapters: 101 (1)-(6)]

In cases involving minor children of the marriage, the court will order that the parties participate in a Parenting Education Course designed to educate the parties on the impact of divorce on children. Mediation may be ordered if the court sees benefit to that order. The court may extend the proceeding for up to sixty days should the parties wish to seek marriage counseling. 

 

 

 

[Delaware Code - Title 13 - Chapters: 1507, 1517]

Grandparents may petition the court for custody or visitation before, during or after a divorce proceeding. The courts will use "best interests of the child" when considering:

• wishes of the parents and the child,
• child’s adjustment to home, school and community, and
• mental and physical health of all persons involved. Should an adoption occur, all rights terminate.

Grandparents are allowed reasonable visitation rights by statute, however, when the parents of the child have an intact marriage, grandparents are not likely to prevail in petitioning for visitation. The state encourages grandparents to visit with grandchildren when the grandchildren are with the adult child (parent) of the grandparent.

Visit our discussion on Grandparents Rights to Visitation

 

Worried about a custody battle? Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

 

[Title 10, Chapter 9, Subchapter III, Section 1031.7]

In order to file for divorce in this state, you must have resided in Delaware for six consecutive months just prior to filing your petition. The forms and procedures are somewhat different, depending on whether your case is contested or uncontested. The respondent to the filed petition has 20 days in which to respond in writing to the court. Failure to do so can result in a default judgment against the respondent, meaning the person filing may be granted some or all of the requests in the petition.

Not responding to a petition, or responding that that one agrees to the request for divorce makes the case an uncontested divorce. With uncontested divorces, the petitioner has two choices about what type of divorce proceeding he/she would like to have:

1. The petitioner may request that the court decide the petition for divorce solely on the papers filed without the need for the parties to appear in court, or,
2. The petitioner may ask the court to decide the petition for divorce after holding a hearing that the petitioner must attend but that the respondent isn't required to attend.

When submitting the petition you will be asked to select which type of uncontested divorce you would like if the divorce is deemed uncontested.

What forms will be required?

Petition for Divorce - Your details as well as those of your spouse go here, including the reason for the divorce request and what issues you request the judge rule on. This is done by checking boxes that indicate your marriage is irretrievably broken and that reconciliation with your spouse is not likely. You must also indicate the date that you and your spouse separated. This form must be signed in the presence of a notary.

Information Sheet form - provides general information about you both and provides the detail for notifying you about upcoming proceedings.

Division of Public Health/Vital Statistics form - similar info as the Information Sheet but this goes to the Division of Public Health and Vital Statistics. It is mandatory for you to complete it.

Request for Notice form - use this form to notify the court how you want to notify your spouse about the Petition for Divorce. If your spouse lives in Delaware, you must ask the court to serve him/her with a copy of divorce petition.

You MUST file a certified copy of your marriage certificate or the original certificate. You can obtain a certified copy of your marriage certificate from the Division of Public Health and Vital Statistics in the state or jurisdiction where you got married.

Other forms or documents you may need:

Affidavit of Children’s Rights - you must file this form if you have children with your spouse.

Separation Agreement - this is not a standard court form you can complete and file. Download a Separation Agreement here.

Stipulation to Incorporate the Separation Agreement Form - file this form if you want the Court to be able to enforce the Separation Agreement.

[Make at least (2) copies of each form you intend to file. Bring originals and one copy to the Clerk of the Court's office.]

 

 

See our discussion on Do-It-Yourself Divorce