Delaware State Divorce Law

Petitions for Divorce are filed in Delaware Family Court for those who meet the state residency requirements. Only those who have had continuous residence in Delaware for 6 months or more meet those requirements.

Delaware Grounds for Divorce

In Delaware, a marriage must be shown to be irretrievably broken for the Family Court to grant a decree of divorce. To meet that requirement, there must be evidence that:

• There was a voluntary separation by both parties
• There was a separation caused by misconduct by the defendant
• There was a separation caused by mental illness found in the defendant
• There was a separation caused by incompatibility between both parties

Even if there was an attempt at reconciliation, even such that the parties slept in the same bedroom and had intimate relations, as long as those relations were not in the previous 30 days before appearing in court, the request for divorce will not generally be denied.

Uncontested Divorce in Delaware

Delaware is a no-fault divorce state, which means that if it can be proved that the marriage is irretrievably broken and that reconciliation is unlikely, a divorce can generally be granted. As long as both parties agree to all the issues relating to the divorce, the divorce can be granted as an uncontested divorce. The petitioner may request a divorce based “solely on the papers,” which means the parties are not required to appear in court for the divorce decree.

Contested Divorce in Delaware

While Delaware is a no-fault divorce state, if the parties cannot agree on all the elements at issue in a divorce, they will be required to appear in court to present those issues to a judge, who will create an agreement upon which the divorce will be granted.

Annulment in Delaware

In Delaware, the only other way to end a marriage, besides divorce, is to have the law proclaim that it is already void due to the circumstances under which it was created:

• Inability to consummate the marriage
• Bigamy
• Mental incapacity
• Consanguinity, or marrying a close relation
• Duress and fraud

No Fault Divorce in Delaware

As a no-fault divorce state, the only ground for a divorce in Delaware is proving that the marriage is irretrievably broken.

Delaware Fault Divorce

There are no legal grounds for charging fault in a divorce proceeding in Delaware, since it is a no-fault divorce state.

Delaware Divorce and Child Custody

Child Custody Laws

Neither parent in a divorce proceeding is deemed more qualified to be granted custody of a child merely because of their gender. In addition, the conduct of the parties involved will not determine the granting of child custody unless that conduct is directly related to that parent’s relationship with the child. The factors that do influence custody decisions include:

• The wishes of the parents
• The wishes of the child
• The relationships of the child with parents, other family members, and other residents of either household
• The child’s adjustment to home, school, and community conditions
• The mental and physical condition of all involved
• Past and current adherence to parenting standards by both parents
• Any indication of domestic violence
• Any criminal history of parents or others living in either household

Child Alimony

Child support in Delaware is determined primarily on the best interests of the child, and it shall continue until the child is 18 years of age or until the child graduates from high school. Other factors determining child support include:

• Any finances the child may posses
• The standard of living the child would have enjoyed without the divorce
• The condition of the parents
• The earning capacity of the parents
• The condition of the child
• The needs of the child
• The financial needs of the parents

Child support is calculated using Child Support Worksheets, although it can be influenced by any extraordinary medical or childcare expenses.

Delaware Divorce Spousal Support

Spousal support is granted in Delaware based on the inability of the dependant spouse to provide their own support at the time of the divorce and until they obtain employment or training in order to do so. Spousal support is based solely on the need of the dependent party and the ability to pay of the supporting party. However, the dependent party is eligible for support only for a period up to 50% of the length of the marriage, except for those marriages that lasted 20 years or longer. In such circumstances, there is no time limit to spousal support, unless the parties come to an agreement in writing, or one of the parties dies, remarries, or cohabits with someone else.

Lump Sum Alimony

Determined at the discretion of the court.

Permanent Alimony

Determined at the discretion of the court

Temporary Spousal Support

Determined at the discretion of the court

Rehabilitative Alimony

Determined at the discretion of the court

Military Divorce in Delaware

Spouses in the military are protected by Delaware law in several ways:

• Divorce papers must be service to the recipient personally
• If those papers cannot be served personally, the serviceperson cannot be charged with default for failing to respond to a divorce action
• Proceedings may be postponed throughout the party’s service and up to 60 days after
• Direct payment of retirement pay is provided to spouses married 10 years or longer
• Child support is not to exceed 60% of serviceperson’s pay and allowances

Help From A Delaware Divorce Lawyer?

Delaware courts have provided means by which couples may part amicably and agree to a divorce settlement out of court. Those situations may not require the services of a divorce attorney. However, there are many divorces in which the parties cannot agree as amicably to all the terms of a settlement. In those cases, the best asset a party can have is an experienced divorce lawyer who can guide them through the negotiation and hearing processes to ensure an equitable decision for all involved.

Thinking About Divorce?

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Want to Learn More?

Check out Nolo's Family Law Resources

Nolo's Essential Guide to Divorce

Divorce Without Court

Retirement Accounts in Divorce

Divorce & Money

A Judge's Guide To Divorce

Temporary Custody &

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