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Divorce
Forms |
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 No doubt you're stressed to the max. You never planned to be where you are. However, stuff happens, and we're here to tell you that it will be okay. Not today and maybe not tomorrow, but over time, it
gets better. Take a deep breath. If nothing else, we'll give you some answers and ease your anxiety. If you're having a tough time coping, perhaps you should view
this page first.
Child Support
A word of caution: 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. Please 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. 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.
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. 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, family law requires a mediation conference for either a dissolution
(divorce) or a separation proceeding. A mediator will use the Delaware Child Support Formula to calculate the child support amount,
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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 divorce statutes provide
that in cases where a marriage annulment or marital
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.
Delaware courts consider
the following before awarding child support: 1.
the financial resources of the child, 2. the standard
of living the child would have enjoyed if there
had been no divorce, 3. the age and health of
the parents, 4. the earning capacity of each parent,
5. the amount and sources of income of each parent,
6. the age, health, or station of the child, 7.
the estate and needs of the child, 8. the relative
financial means of the parent.
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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 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
divorce, settlement or separation agreement, all
child custody issues must be resolved and approved
by the court. |
Delaware
family law 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.
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Visitation/Co-Parenting
Under Delaware
law, 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:
1. Neither parent will permanently remove the
child from the State of Delaware while the custody/visitation
proceedings are pending in the Court without the
permission of the other parent or
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the
Court. 2. 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 come to an 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 the petition and cannot agree on a temporary contact schedule with the child, 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
the divorce. Don't rely that your attorney will
think of everything. You set the course; your
lawyer navigates. If you anticipate any problems
with custody or visitation, we suggest you own Child
Custody Strategies. |
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Alimony/
Maintenance/ Spousal Support
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:
1. 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;
2. Lacks sufficient property, including any award of marital property made by the Court, to provide for his or her reasonable needs; and
3. 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 |
maintenance
order) may be granted without regard to marital
misconduct. The court will consider the following:
1. The financial resources
of the party, 2. The time necessary and expense
required to acquire sufficient education or training,
3. The standard of living established during the
marriage, 4. The length 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 other
party to meet his or her needs while paying alimony;
8. Tax consequences; 9.
Any foregone or postponed economic, education
or other employment opportunities during the course
of the marriage; and 10. 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
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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.
You may realize that we all need some help
processing all this angst. The help can come in
the form of friends, relatives or professionals.
If you're not inclined to approach family or friends,
and unwilling to pay for professional counseling,
the next best step would be educating yourself,
through reading. This site has a Bookstore
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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
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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:1. Transferring
or concealing any property except in the usual
course of business or for the necessities of life; 2. Molesting
or disturbing the peace of the
other party; 3. Removing
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a
child of the parties if residing in Delaware from
the jurisdiction of this court without the prior
written consent. of the parties; 4. 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.
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Marriage
Annulment
Marital Annulment
A request for an marriage annulment must be treated in the same fashion as with a divorce. 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 divorce, the petition is |
uncontested.
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.
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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. |
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Marriage
Counseling/
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. 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.
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Legal
Separation/
Marital Separation
Before you file for divorce,
you and your spouse must have gone through a period
of marital separation. Under Delaware law, 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. Delaware
recognizes a separation if the couple have lived
in the same house but have lived separate lives,
which prohibits sharing a
bedroom and sexual relations. Be aware that Delaware
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divorce
laws demand that youhave
not 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
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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. |
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Waiting
Period
Six months from filing must have elapsed before a divorce may be granted. This
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 have prevailed. |
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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.) The 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.
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State
Fact Sheets for Grandparents and Other Relatives
Raising Children |
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Divorce
Settlement
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 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 settlement 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? Are you worried about some property you had prior to the marriage, and that it might become part of the divorce settlement or property settlement? 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.
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Residency
Requirements
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. |
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