Delaware divorce laws
Child
Support
 Delaware divorce
laws 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.
The payment of benefits from a retirement
plan to anyone other than the participant is prohibited unless directed by a Qualified Domestic Relations Order (QDRO). It is essentially a court order that causes retirement plan benefits to be divided, in many cases avoiding taxation.
Both the participant (person who earned
the benefit) and the spouse (known as the alternate payee) have certain rights allowed by Federal law.
A QDRO is generally required for all retirement plans except government or public employee plans. These exceptions do require a different type of court order to effect division however.
Payment from 401(k) or profit sharing plans to the alternate payee can occur in the form of an IRA rollover-type plan or in one single payment. Defined benefit plans generally only allow monthly payments, and are often set up as an annuity, paying the recipient for life.
p align="left"> Due to a variety of retirement plan options, statutory differences between the states, and a wide range of judicial discretion, simple answers to how and when retirement plan division occurs are not available. Legal counsel can help you get your interests represented fairly.
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. The formula is applied uniformly to ensure that the
amount will be fair and the children will receive adequate support.
In Delaware, a mediation conference is mandatory. 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 an agreement cannot be reached, an interim or temporary order may be issued. A hearing then will be scheduled before a Commissioner.
Delaware courts 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
li class="style23"> the age, health, or station of the child
- the estate and needs of the child
- the relative financial means of the parent
| Divorce Myth: When parents don’t get along, children are better off if their parents divorce than if they stay together. Reality: A recent large-scale, long-term study suggests otherwise. While it found that parents’ marital unhappiness and discord have a broad negative impact on virtually every dimension of their children’s well-being, so does the fact of going through a divorce. In examining the negative impacts on children more closely, the study discovered that it was only the children in very high conflict homes who benefited from the conflict removal that divorce may bring. In lower-conflict marriages that end in divorce—and the study found that perhaps as many as two thirds of the divorces were of this type—the situation of the children was made much worse following a divorce. Based on the findings of this study, therefore, except in the minority of high-conflict marriages it is better for the children if their parents stay together and work out their problems than if they divorce. |
Are you in need of assistance in applying for child support, and haven't contacted an attorney yet? You can visit the local Division of Child Support Enforcement office, call them and request an application by mail, or download an application here. This office will help you establish child support, locate a non-custodial parent and/or help with enforcing an already existing child support order. For contact information, use this link.
Residency 
At least one of the parties to the action
for 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.
Child Custody
 The court will determine the child 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 will 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; and, 6.) Evidence of domestic violence.
Delaware courts 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 has equal powers and duties.
The court mandates that 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.
| Divorce Myth: Because they are more cautious in entering marital relationships and also have a strong determination to avoid the possibility of divorce, children who grow up in a home broken by divorce tend to have as much success in their own marriages as those from intact homes. Reality: Marriages of the children of divorce actually have a much higher rate of divorce than the marriages of children from intact families. A major reason for this, according to a recent study, is that children learn about marital commitment or permanence by observing their parents. In the children of divorce, the sense of commitment to a lifelong marriage has been undermined. |
Grounds for Divorce
 The court will grant a divorce whenever it finds that the marriage is irretrievably broken and that reconciliation is improbable. Delaware courts define "irretrievably broken" when the relationship is characterized by: 1.) Voluntary separation; or 2.) Separation caused by respondent's misconduct; or 3.) Separation caused by respondent's mental illness; or 4.) Separation caused by incompatibility
After the filing of a petition for 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.
Mediation
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. The court may extend the proceeding for up to sixty days should the parties wish to seek counseling.
Alimony
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 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 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.
Should one of the parties waive or release his or her right to alimony (in writing), they will be unable to regain that right.
Death terminates the obligation to pay alimony unless otherwise agreed. Remarriage or cohabitation also terminates alimony obligations.
| Divorce Myth: It is usually men who initiate divorce proceedings. Reality: Two-thirds of all divorces are initiated by women. One recent study found that many of the reasons for this have to do with the nature of our divorce laws. For example, in most states women have a good chance of receiving custody of their children. Because women more strongly want to keep their children with them, in states where there is a presumption of shared custody with the husband the percentage of women who initiate divorces is much lower.10 [Sources] Also, the higher rate of women initiators is probably due to the fact that men are more likely to be "badly behaved." Husbands, for example, are more likely than wives to have problems with drinking, drug abuse, and infidelity. |
Waiting
Period
Six months from filing must have elapsed before a divorce may be granted.
Grandparents
Rights
 Grandparents may petition the court for visitation before, during or after a divorce proceeding. The courts will use "best interests of the child" when considering: 1.) wishes of the parents and the child, 2.) he relationship of the child with parents, siblings, and other significant persons; 3.) child’s adjustment to home, school and community; and 4.) mental and physical health of all persons involved. Should an adoption occur, all rights terminate.
Divorce
Settlement
 The court will equitably divide, distribute and assign the marital property between the parties
without any regard to marital misconduct. Considerations for the court include: a.) b.) The length of the marriage; c.) Any prior
marriages; d.) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties; e.) Whether the property award is in lieu of or in addition to alimony; f.) The opportunity of each for future acquisitions of capital assets and income; g.) The contribution or dissipation of marital property, including the contribution of a party as homemaker, husband, or wife; h.) The value of the property set apart to each party; i.) The economic circumstances of each party, j.) Whether the property was acquired by gift; and k.) The debts of the parties; and Tax Consequences.
Did you come into this marriage owning a house?
Concerned about the equity in that house that you brought into the marriage? Here's how it works generally. What you brought into the marriage is usually all yours. However, any appreciation of the house or the property value is normally treated as a "marital asset", meaning that you will likely forfeit a third to a half of that appreciation to your spouse in the divorce.
|
