One spouse must have been a resident of Delaware for 6 months immediately prior to filing for divorce. The divorce may be filed for in a county where either spouse resides.
Legal Grounds for Divorce
No Fault Divorce:
Irretrievable breakdown of the marriage and reconciliation is improbable [a marriage is considered "irretrievably broken" when it is characterized by one of the following:
- Voluntary separation.
- Separation caused by the other spouse's misconduct or mental illness.
- Separation caused by incompatibility.
- Living apart for 6 months because of incompatibility.
General Divorce or Fault Based Divorce:
- Separation caused by mental illness.
Simplified/Special Divorce Procedures in Delaware:
The respondent may file an appearance which will fulfill the requirement of service of process. In addition, a sample Petition for Divorce is contained in Delaware Code Annotated; Title 13, Chapter 1507.
Divorce Mediation or Counseling Requirements in Delaware:
In a contested divorce, the court may delay the proceedings for 60 days to allow the spouses to seek counseling or order a mediation conference. In addition, there are mediation/arbitration units attached to the Delaware Family Court. Finally, the court may require parents seeking divorce to participate in a certified “parenting education course.” If the parent has a history of domestic violence, he or she may be required to attend additional, more intensive courses.
Alimony/Spousal Support in Delaware
Delaware law utilizes three factors to determine whether a court should award alimony in a particular case, according to Delaware Code, Title 13, Chapter 15:
- Is dependent on the other spouse.
- Lacks sufficient property, including any award or marital property, to provide for his or her reasonable needs.
- 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.
Either spouse may be awarded alimony for no longer than a period of time equal to 50% of the length of the marriage. There is, however, no time limit if the marriage lasted for over 20 years.
Marital misconduct is not a factor to be considered in an award or alimony. The factors to be considered are:
- The time necessary to acquire sufficient education and training to enable the spouse to find appropriate employment and that spouse’s future earning capacity.
- The standard of living established during the marriage.
- The duration of the marriage.
- The ability of the spouse from whom support is sought to meet his or her needs while meeting those of the spouse seeking support.
- The financial recourses of the spouse seeking alimony, including marital property apportioned to such spouse and such spouse’s ability to meet his or her needs independently.
- The tax consequences to each spouse.
- The age of the spouses.
- The physical and emotional conditions of the spouses.
- Any custodial and child support responsibilities.
- Whether either spouse has foregone or postponed economic, education, or other employment opportunities during the course of the marriage.
- Any other factor that the court finds just and appropriate.
Any party awarded alimony has a duty to make an effort to seek vocational training and employment unless the court finds that it would be inequitable to require this because of:
- A severe physical or mental disability.
- His or her age.
- The needs of any children living with the spouse receiving alimony.
Unless the spouses agree otherwise, alimony is terminated upon death, remarriage, or cohabitation with another person.
Child Custody in Delaware:
Joint or sole child custody is awarded based on the best interests of the child and after considering the following factors:
- Preference of the child.
- The wishes of the parents.
- The child’s adjustment to his or her home, school, and community.
- The mental and physical health of all individuals involved.
- The relationship of the child with parents, siblings, and other significant family members.
- The past and present compliance by both parents with the duty to support the child.
The conduct of the proposed guardian is to be considered only as it bears on his or her relationship with the child. No preference is to be given because of parent’s sex.
In addition, in any case involving minor children, the petitioning parent must submit with the petition a signed affidavit that states that the parent has been advised of or has read the following list of children’s rights. The list of rights must be included in the affidavit. The children’s rights are:
- The right to a continuing relationship with both parents.
- The right to be treated as an important human being, with unique feelings, ideas, and desires.
- The right to continuing care and guidance from both parents.
- The right to know and appreciate what is good in each parent without 1 parent degrading the other.
- The right to express love, affection, and respect for each parent without having to stifle that love because of disapproval by the other parent.
- The right to know that the parents’ decision to divorce was not the responsibility of the child.
- The right not to be a source of argument between the parents.
- The right to honest answers to questions about the changing family relationships.
- The right to be able to experience regular and consistent contact with both parents and the right to know the reason for any cancellation of time or change of plans.
- The right to have a relaxed, secure relationship with both parents without being placed in a position to manipulate 1 parent against the other.
Child Support in Delaware:
Under Delaware law, both parents have a duty to support their child until the child is 18 years of age, or, if the child is still in high school, until the child graduates or turns 19 years of age, whichever comes first.
A support action begins when one parent files a support petition, requesting the Court to order the other parent to pay child support. After the petition is filed, the Court may order genetic testing to establish paternity, if necessary. Most parents seeking support are represented by the Division of Child Support enforcement (DCSE). In those cases, DCSE files all actions and pursues administrative remedies also. The Court encourages all parents seeking support to explore the services of DCSE. The following factors are considered in awards of 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 parents.
Property Distribution in Delaware:
Delaware is an “equitable distribution” state. A spouse’s separate property is that which is:
- Was obtained prior to the marriage.
- Was obtained by inheritance.
- Is specified as separate property by an agreement between the spouses
- Is property acquired in exchange for separate property or an increase in value of separate property.
All separate property is retained by the spouse who owns such property. Marital property acquired during the marriage, including any property acquired by gift, is to be divided equitably, without regard to fault, based on the following factors:
- The contribution of each spouse to the acquisition of the marital property, including the contribution of each spouse as homemaker.
- The value of each spouse’s personal property.
- The economic circumstances of each spouse at the time the division of property is to become effective.
- The length of the marriage.
- The age and health of the spouses.
- The occupation of the spouses.
- The amount and sources of income of the spouses.
- The vocational skills of the spouses.
- The employability of the spouses.
- The estate, liabilities, and needs of each spouse and the opportunity of each for further acquisition of capital assets and income.
- the federal income tax consequences of the court’s division of the property
- Liabilities of the spouses.
- Any prior marriage of each spouse.
- Whether the property award is instead of or in addition to maintenance.
- How and by whom the property was acquired.
- Any custodial provisions for the children.
Disclaimer: The divorce law information provided is for informational purposes only not for legal advice purposes. This information is general in nature. Each jurisdiction has specific code and court procedures. A local divorce attorney is your best source for how divorce is treated in your jurisdiction. Before making any legal decisions we encourage you to consult with a local attorney…do not make decisions based on general state divorce law.