In order to divorce in the state of Delaware, either you or your spouse has to meet the residency requirements of living in the state for at least six months prior to starting the divorce process. You also must certify that there is no probability of you getting back together with your spouse. Once you start the divorce process, you and your soon to be ex-spouse will have to decide on issues like dividing the property, debt and child custody and support if you have children.
Grounds for Divorce
Delaware is a no-fault state. When you fill out the petition for divorce, you must certify that you are unlikely to get back together, and that your marriage is irretrievably broken due to one of the following reasons:
- Either mental or physical abuse
- Your spouse's mental illness
- Voluntary separation
How to Start a Divorce in Delaware
While you should always seek legal advice from a qualified lawyer, the Delaware courts offer an instruction booklet for representing yourself in your divorce, and an answer packet for answering a divorce summons. To start the divorce process in Delaware you:
- File a petition for divorce or annulment form, found on the forms page.
- Your spouse has 20 days to respond after being served.
If your spouse doesn't respond, or doesn't contest the grounds for divorce, you may proceed without a hearing for the divorce decree. If your spouse does respond, you will proceed with hearing before the commissioner to decide on your divorce, and potentially another hearing before a judge to decide on matters like property division, alimony, or child custody and support. Page six of Delaware's guide on divorce outlines what happens in a contested vs an uncontested divorce.
When it comes to property division in divorce, Delaware is an equitable distribution state, and all marital assets are subject to division. Marital assets are distinct from so-called "separate property." which belong solely to each spouse and do not get divided. Examples of separate property include inheritances, personal injury settlements or property that both spouses agree is not marital property. The court considers many factors when deciding how to divide marital assets, including, but not limited to:
- How long the marriage lasted
- Whether or not either party was previously married.
- The financial status and potential of each spouse.
- The value of the assets and whether or not they are being awarded in lieu of alimony.
Like most states, Delaware courts have broad discretion when it comes to awarding alimony. They don't automatically give it to one spouse just because the spouse asks for it. Courts can award a couple different types of alimony in Delaware. For example, they can award it temporarily while the case is still pending. They can also give one party alimony while that party is attending a job training program. According to Delaware law, courts consider several factors when deciding whether alimony is appropriate in a given case:
- Whether or not the requesting spouse was dependent on the other spouse.
- A spouse's financial resources (including property awarded), and whether or not they are sufficient to meet his or her needs.
- The time necessary for a dependent spouse to seek education in order to find employment.
- The standard of living the couple established during the marriage.
- How long the marriage lasted.
- The age and physical condition of the spouses.
- Contributions that one spouse may have made to the other for education, employment training, etc.
- The ability of the paying spouse to pay alimony and still meet his or her needs.
- Any tax consequences to receiving alimony.
- If on spouse has foregone or postponed education or job opportunities during the marriage.
The court does not consider misconduct at all.
Considering the Children
When a divorce involves children, the Delaware divorce courts go to great lengths to protect them from the divorce process. If the divorcing parents cannot reach a fair agreement regarding the custody of the children, the court steps in and resolves the issue. It is usually best for the children if the parents can reach an agreement instead of resorting to litigation.
In Delaware, before a judge will hear a custody or visitation case, both parents seeking parental rights must attend a parent education class. A list of approved classes can be found on the Delaware state divorce and annulment overview page. After the class, the instructor will give a certificate which must be presented to the court.
When Delaware courts are called upon to resolve child custody disputes, the court uses several factors to determine the child's best interest. Some factors that the court considers include:
- What the child wants to do, if the child is old enough to explain to the courts his wishes
- What the parents would like to see happen with custody
- The relationship of the child with any other persons who are living with a custodial parent, and how those relationships affect the best interest of the child
- How the child would adjust to a new home
- The mental and physical health of the parents and children involved
- Whether or not both spouses have fulfilled previous parenting responsibilities, including court-ordered education and appearances
- Evidence of domestic violence or criminal history
Delaware considers that both parents have an obligation to support their child(ren) until the child(ren) reach the age of 18 or finish with high school. If parents cannot agree on child support, one parent can petition the other parent for support. Delaware offers a support calculator to help parents try to figure out the support they may owe, but factors (see page 4) generally considered include:
- The financial stability of both parents
- Any medical needs the child has
- Child care needs of the child
- Support of any other children
- With whom the child lives
Child support is handled by the Division of Child Support Enforcement, and they will typically help a petitioning party file paperwork. It should be noted that failure to pay child support may result in having your license suspended until the support has been paid or arrangements made.
Deciding to Divorce
In most cases, divorce is less traumatic for everyone, especially children, if the spouses can reach an agreement early on. Talk to your spouse about important issues in your case. Negotiating your own settlement agreement can save you considerable time and expense.