Requirements for Divorce in Delaware
Delaware allows filing for a “no-fault” or “fault-based” divorce.
Either your spouse or you should have resided in Delaware, or if you are a member of the US Military, you need to be stationed in Delaware for 6 months or more before filing for divorce.
You must file for divorce in the county you or your spouse live in
For the court to proceed with your divorce process, your spouse and you must be separated for a minimum of 6 months.
Delaware grounds for divorce
Your spouse and you must be separated for a minimum of 6 months before you can file for a no-fault divorce. However, as per the Delaware law, although your spouse and you live in the same house, you will be considered to be separated as long as you don’t occupy the same bedroom and you don’t have any sexual relations with your spouse, 30 days prior to day that the court hears your divorce petition.
And, for divorce in Delaware, your marriage must be “irretrievably broken” without the scope of reconciliation.
A marriage is considered as being irretrievably broken if the separation:
Is caused because of the misconduct of the respondent
Is due to the respondent’s mental illness
Is caused because of incompatibility
Step 1: Starting your Delaware divorce
The forms required to file for divorce along with detailed instructions are available on the Delaware Court website. To start your divorce, you must prepare your “Petition for Divorce”, which contains information about you, grounds for divorce, date of separation and what you are seeking from the divorce, and then file it.
The divorce petition does not deal with child custody and support issues, these must be filed in a separate petition. If your spouse and you have a separation agreement, then you must file it with the divorce petition.
Documents Needed for Filing for Divorce
Forms required for a no-fault divorce in Delaware:
Petition for Divorce: This identifies both spouses, the children and the relief sought. This specifies the kind of divorce if it is contested (a) if it is only on basis of the papers and without a hearing or (b) with a hearing and decided by a commissioner.
Information Sheet: This identifies the specific details of the case including if the petitioner is filing for custody, support, visitation or protection from abuse or not.
Marital Settlement Agreement
Division of Public Health/Vital Statistics Form
Request for Notice: This provides for the respondent spouse to receive the copy of the petition without being served the summons and enter an appearance.
Answer or Affidavit of Appearance and Waiver of Rights: Informs the court that the respondent does not require to be given the notice of the divorce petition and that he/she will not file an answer to the divorce petition.
Forms for couples with children:
Affidavit of Children’s Rights: This must be completed by the parents of minor children and signed by both spouses and is a list of the rights of the children.
Certificate of Completion of Parent Education Class
These are the basic list of forms and there may be additional forms required, which you can get from the website of the Delaware Court.
Filing Your Forms
Once the forms are completed, you must file them at the family court in the county where your spouse or you live. You can either file your forms personally at the family courthouse or you can do it by mail. You must file your papers along with the filing fee, details of which is available here.
Step 2: Give spouse legal notice
You should ask the court to serve the papers to your spouse personally if your spouse resides in Delaware and you know your spouse’s address. This means that the Petition for Divorce will be delivered to your spouse at home or the workplace by someone personally.
If you are not aware of your spouse’s location, then you must fill out an affidavit that the address of the party is unknown and you must request the court to publish the petition notice in the newspaper.
However, you will have to pay the cost of publication of the notice. In the case that your spouse does not live in Delaware, then you should request the court to notify your spouse through certified mail and also publish the petition notice in the newspaper.
Step 3: Contested or uncontested Delaware divorce?
Contested Divorce (High Costs)
If your spouse challenges the information that you have put in the divorce petition such as grounds for the divorce, property division, etc., then this is known as a contested divorce.
In the case of a contested divorce, the court schedules the hearing automatically. You must consult a family law attorney to help in the case of a contested divorce who will fight the case on your behalf. Attempting to represent yourself could lead you to having a much less favorable outcome than if you were to hire an attorney.
Uncontested Divorce (Low Costs)
When you file a petition for divorce; however, if your spouse does not file an answer to the divorce petition within 20 days of receiving the petition or your spouse agrees to your petition and files an answer, then the divorce is an uncontested one.
You must choose between the 2 options of proceedings if your divorce is an uncontested one:
Your divorce may be decided by the court only on the basis of the papers that you have filed, without your spouse or you appearing for a hearing in the court.
Your divorce may be decided by the court after a hearing, which you will be required to attend; however, it is not mandatory for your spouse to attend the hearing.
If your spouse or you have asked the court to divide your property or award the spousal support, then you must appear in front of the judge for a hearing, even if your divorce is uncontested, unless your spouse and you settle the issues in advance.
Step 4: DIY or hire an attorney?
DIY divorce Papers (Slower & Least Costly)
If you plan to go in for the “pro se” representation i.e. “appearing for oneself” without a lawyer, then you must be aware that although you are not a lawyer the court expects you to follow the same rules and regulations that lawyers must follow.
Also, the court won’t let you skip any of the procedures because you didn’t know when or how to follow certain procedure. a DIY divorce can be quite confusing and take a lot of time for you to figure out things on your own.
However, the court will give you all the general information required to guide you through the divorce process. Also, if you have any doubts, you can always check with the court staff; however, you must remember that the court staff cannot offer legal advice and tell you how you can protect your interests and what you must do.
Online Divorce Services (Fastest & Inexpensive)
If you are not very sure of how to go about completing the documents to file for divorce, but at the same time, you don’t want to hire a lawyer, then you can consider the option of using an online divorce service.
They’ll present you with questions regarding your divorce and when you are done, you have your divorce forms complete and ready to file. You can read our review of our top pick, 3stepdivorce.com, and how they can cut your time down to hours, if your divorce is uncontested.
You can take a print out of the forms when you complete them and file them with the clerk at the local county courthouse with the filing fee.
Attorney Divorce Trial (Longer & Expensive)
If an appearance has been filed by your spouse and you are unable to agree on all the terms of your divorce, then a divorce trial will be scheduled. a judge will hear your case and make decisions regarding the various issues such as alimony, child custody, child support and visitation, property division, etc.
However, even if the trial has started and your spouse and you are able to resolve any of the issues, then the court encourages you to do this and then report the agreements you have arrived at to the court.
If you and your spouse are just hung up on one issue that you both can’t seem to come to a resolution on, hiring a mediator may be a better option to help save costs and time. a mediator will help to make sure that both sides are heard fairly and move the disagreement to a resolution that’s best for both parties. Allowing the court to decide what is fair could back fire and leave you both in a worse situation.
Step 5: resolving the big issue
Delaware Property Division
The marital property will be divided equitably since Delaware is an equitable distribution state. The court encourages the divorcing spouses to make a settlement on the property and debt, otherwise, the court will make the decision on your behalf.
The court will consider the following factors while determining the division of property:
Duration of the marriage.
If either of the spouses has been married earlier.
Age, station, health, sources and amount of income, employability, vocational skills, estate, needs and liabilities of each spouse.
Whether the property is being awarded in addition or in lieu of the alimony.
Opportunity of the future income and capital assets acquisitions of each spouse.
Contribution or the dissipation of each spouse in the preservation, acquisition, appreciation or depreciation of the marital property and also the contribution of each spouse as a homemaker.
Value of the marital property set apart to each spouse.
Economic situation of each spouse when the property division will be effective. This also includes the desirability of either awarding the family home or the right to live in the home to the spouse with whom the children will live.
If the property was acquired as a gift.
Tax consequences and debts of each spouse.
DE Spousal Support (Alimony)
The responsibility of one party to support the other financially, either on a temporary or permanent basis is decided either by agreement between both spouses or at the discretion of the court. And, in deciding on the alimony award, the court will consider the following:
Financial resources of the spouse seeking alimony and the property, marital or separate, that has been awarded to him/her and his/her ability to meet all/part of his/her needs independently.
Time and expense required to acquire training or education to enable the spouse seeking alimony to find suitable employment.
The standard of living maintained by the spouses when married.
Length of the marriage.
Age, emotional and physical condition of both spouses.
Any contribution, financial or other made by either spouse for the training, educational, vocational skills or increasing the income or earning capacity of the other spouse.
Ability of the paying spouse to meet his/her needs while also paying alimony.
Whether either spouse has postponed or foregone any economic, employment or education opportunities while they were married.
Tax implications of each spouse.
Any other relevant factors.
Delaware Child Custody Laws
The Delaware law allows both joint, as well as, sole custody of the child and also makes use of the terms, residential arrangement and legal custody of the child. Residential arrangement is the amount of time the child spends with each parent, while legal custody is the authority given to the parent to make the major decisions pertaining to the child.
The court will determine the custody of the child keeping the best interests of the child in mind and also considering relevant factors such as:
The parents’ wishes.
The child’s wishes.
Relationship of the child with his/her parents, siblings, grandparents or other individuals who affect the best interests of the child.
Adjustment of the child to his/her community, home and school.
Physical and mental health of all individuals.
Compliance of both the parents along with their rights and responsibilities towards the child.
Any evidence of domestic abuse or violence.
Criminal history of both spouses or any other resident.
Delaware Child Support Laws
This is essentially determined according to the child’s needs and the relative ability of each parent to meet these needs, as per the child support guidelines of Delaware.
Each parent has a duty to their child/children until the age of 18, while in high school (until they graduate or turn 19, which ever comes first.)
Factors used to calculate child Support
Both parents earning are calculated
Any support of other children is considered
Health insurance, pensions, disability insurance, and union dues are also considered
Average annual overnights the child will spend with each parent.
Step 6: Finalizing your delaware divorce
If your spouse and you have minor children, then you must both attend a Parent Education Class, although, before taking the class, you can file for divorce. However, the court won’t proceed with your case until your spouse and you submit a certificate of completion of the course.
Your case is “trial ready”, if:
Your divorce is a no-fault divorce.
Your spouse and you have undergone a separation for a minimum of 6 months.
Your spouse has been served the Petition of Divorce.
Your spouse and you have completed and filed a completion certificate for the Parent Education Class.
This essentially means that you have completed all the basic requirements and you can now go ahead with your divorce. When your case is ready for trial, you will get a court notice.
If your divorce is uncontested and you have requested to go ahead without a hearing, only on the basis of the papers you have submitted, then you will get a court notice where you must file the “Request to Proceed Without a Hearing” and the “Affidavit in Support of the Request to Proceed Without a Hearing” within 20 days.
All the documents will be then sent to the commissioner, who will decide whether or not to grant you the divorce. Your spouse and you will receive the divorce decree by mail, in case the commissioner grants the divorce. Otherwise, you will be denied the petition for not meeting the legal requirements or scheduling a hearing in order to take evidence and testimony. Your spouse and you will get the date and time notice in case the court fixes a hearing.
If your divorce is an uncontested one; however, you have requested a hearing, your spouse and you will get a notice of the details of the hearing such as the date and the time. On the date of the court hearing, both of you must make an appearance in court, otherwise, your petition will be dismissed by the court and you will have to start the entire process again. The judge will take the evidence and testimony at the hearing to assess whether or not the divorce must be granted. If the petition is granted by the judge, then you will get the Order & Decree of Divorce.