Delaware allows married couples to petition the court for a divorce or annulment. A legal divorce ends a marriage, distributes marital property, and terminates each spouse’s marital rights. Divorce in Delaware is fault based or no-fault. Delaware has residency requirements for divorce. Typically, a person seeking a divorce in Delaware must have lived in the state for at least six months.
Delaware requires that a couple separate for at least six months before a no-fault divorce can be finalized. The two spouses must live apart, which means that they at least live in separate bedrooms. This six month waiting period does not apply to fault divorces. Unlike some states, Delaware does not allow legal separation, which is when spouses separate financially and in terms of their residence, but still cannot remarry because their legal marriage has not ended.
An annulment voids a marriage, so that legally it is as if the marriage never took place. A person should contact an experienced family law attorney, if they have questions about whether they should divorce, separate, or annul their marriage.
What Paperwork Do You Need to File for Divorce?
To initiate a divorce, a person must file various documents with the Family Court for the county in which the person lives. These documents include:
- A Petition for Divorce or Annulment: This is the core document which requests a divorce or annulment of the marriage. The petition should allege the following:
- That the parties have been separated for the necessary 6 months,
- That the marriage is irretrievably broken,
- The separation Is voluntary, or
- The separation is the result of the misconduct of the respondent, the other party to the marriage; or
- Is due to the respondent’s mental illness;
- Is caused by incompatibility without fault on the part of either of the spouses;
- A Petition for Child Custody and Support: A person would file this petition if there are children of the marriage;
- Information Sheet;
- Vital Statistics Sheet;
- Request for Notice; and
- Affidavit of Children’s Rights: If the divorcing spouses have children, this form would be necessary. Its purpose is to inform both parents of the rights the child of the marriage has, e.g., the right to a continuing relationship with both parents.The point here is for both parents to understand the rights their child or children have, rights that the court works to protect in a divorce.
These forms are available either at the Family Law Court in the county in which a person lives or online.
Keep in mind that In Delaware, the only ground for divorce is irretrievable breakdown of the marriage relationship based on one of a number of possible factors as follows:
- A separation by mutual consent; or
- A separation due to misconduct on the part of one spouse such as physical or emotional abuse, infidelity, abandonment, alcohol or substance abuse, imprisonment for more than 1 year; or
- A separation due to mental disorder; or
- A separation due to incompatibility, without regard to the fault of either party.
Additional forms have to be submitted during the divorce process, including financial information and a parenting plan, if there are children of the marriage.
Once a person has filed their petition and other forms, the court will serve them on the person’s spouse. While there is no legal requirement that a person notify their spouse before filing a divorce petition, it may be in their best interest to do so. A person may be able to negotiate the terms of a divorce amicably, and this would lead to an easier divorce process.
On the other hand, if a person is a victim of domestic violence, it might be a good idea to request a protective order before filing for divorce.
How is Property Divided During a Divorce?
It is always best for a person to negotiate with their spouse before beginning a divorce proceeding, if that is an option. However, if divorcing spouses cannot agree on how to distribute their assets between them, the court will divide their property equitably. Equitable distribution does not divide the assets on a fifty-fifty basis.
Rather, the court determines what is fair based on a series of factors, including the value of the property, its character, e.g. if it is inherited by one spouse, it belongs to that spouse, and each spouse’s economic circumstances.
While marital property is equitably distributed between spouses, a person is typically allowed to keep their separate property. Separate property is property that the spouse acquired as follows:
- Before the marriage,
- Through inheritance, and
- Property excluded by a prenuptial agreement.
However, if a spouse commingled separate property, i.e. allowed their spouse to have access to and the benefit of using the asset, it might be considered marital property by the court. If a person has questions about property division, they should contact an experienced family law attorney for assistance. An experienced lawyer may be able to negotiate a fair distribution of marital property, thereby avoiding the time, stress and expense of litigation.
What Should You Do If There are Children Involved?
If there are children of the marriage, the spouses must also address child custody and child support during their divorce. If the divorcing spouses cannot agree on a plan for child custody and support, the court will award custody and support based on a number of factors and guidelines with the goal being a plan that is in the best interests of the child. The spouses must also attend a parenting education course.
It is important to formulate a plan for child support and custody that is appropriate and fair to both parents and the child. It is advisable to work hard to get it right during the initial divorce proceeding. It can be difficult to modify these orders at a later date, and going to court to make changes is sure to result in additional attorney fees and costs.
Do You Need to Pay Alimony?
Delaware courts consider a variety of factors when deciding whether to award alimony, i.e., spousal support to be paid by one spouse to the other. These factors would include each spouse’s income, financial needs, and the length of the marriage.
Alimony can be temporary, that is, to be paid during the course of the divorce proceeding, or permanent, i.e. to be paid after the divorce is final on a continuing basis. Or, it could conceivably be ordered for a fixed period. An experienced family law attorney can help a person understand their rights and obligations relating to spousal support.
Where Can You Find the Right Divorce Lawyer?
Divorces can quickly become contentious and complicated. If your divorce is going to involve division of a significant amount of property, child custody and child support or alimony, you should consult an experienced Delaware divorce lawyer. A lawyer will advocate on your behalf and work to secure the best possible results for you.
