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Henry Dahut, J.D.
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Henry Dahut is a licensed California trial attorney. Over the course of his 30-plus years practicing law, Henry has represented and counseled countless clients in legal trouble.
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Delaware Divorce & Family Law Summary
Delaware uses its respective legislative process to enact divorce laws, and its divorce courts in Delaware have the authority to manage the divorce proceedings, including, but not limited to, presiding over issues related to spousal support and child support payments, custodial rights of parents, and the division of marital property.
Filing for divorce is a life-changing event. This summary provides a good starting point for learning about your state’s divorce laws and process. Since divorce laws change over time, the summary is not intended to be a substitute for consulting one-on-one with an experienced Delaware divorce lawyer before making important decisions about ending your marriage.
All states allow for “no-fault” divorce. Yet many courts still factor in the respective parties’ past behavior when determining the division of community property, debts, custody, support, and related issues.
Residency Requirements
In Delaware, the residency requirements for filing for divorce include that at least one spouse must have been a resident of Delaware for at least six months immediately before filing for divorce, and the divorce must be filed in the Family Court within the county where either spouse resides.
Grounds for Divorce
In Delaware, the grounds for divorce can be classified into two main categories: no-fault and fault-based:
No-Fault Grounds
Irretrievable Breakdown: This is the most common ground should one or more of the parties deem the marriage irretrievably broken. To file on this basis, the couple must have lived separately for at least six months.
Fault-Based Grounds
Should one or more of the parties choose to pursue fault-based grounds for divorce, the following grounds for divorce are recognized by the state:
- Adultery: One spouse has committed infidelity.
- Desertion: One spouse has abandoned the other for a continuous period of at least one year.
- Cruelty: There has been physical or emotional abuse, including domestic violence.
- Habitual Drug or Alcohol Abuse: One spouse has engaged in persistent substance abuse.
- Conviction of a Felony: One spouse has been convicted of a serious crime and imprisoned for a year or more.
Legal Separation
Under Delaware law, to be legally separated, you and your spouse must not share the same bedroom or have sexual relations with one another, except for attempts at reconciliation.
Mediation
In Delaware, mediation is not mandatory for all divorce cases. Still, it is strongly encouraged and sometimes ordered by the court should the contested issues involve child custody and visitation matters.
Property Division
Delaware is an equitable distribution state, meaning that the property and debts acquired during the marriage will be distributed equitably.
The Court shall assign the marital property between the parties without regard to marital misconduct, in such proportions as the Court deems just after considering all relevant factors, including:
- The length of the marriage
- Any prior marriage of the party
- The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties
- Whether the property award is instead of or in addition to alimony
- The opportunity of each for future acquisitions of capital assets and income
- The contribution or dissipation of the marital estate, including the contribution of a party as homemaker, husband, or wife
- The value of the property set apart for each party
- The economic circumstances of each party at the time the division of property are to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the party with whom any children of the marriage will live
- The debts of the parties
- Tax consequences
Alimony
A party may be awarded alimony only if they are a dependent party after consideration of all relevant factors in that they:
- Is dependent upon the other party for support, and the other party is not contractually or otherwise obligated to provide that support after the entry of a decree of divorce or annulment;
- Lacks sufficient property, including any award of marital property made by the Court, to provide for their reasonable needs; and
- Is unable to support themself through appropriate employment or is the custodian of a child whose condition or circumstances make it suitable that they not be required to seek employment.
Alimony Order
The alimony order shall be in such amount and for such time as the Court deems, without regard to marital misconduct, after consideration of all relevant factors, including, but not limited to:
- The financial resources of the party seeking alimony, including the marital or separate property apportioned to them, and their ability to meet all or part of their reasonable needs independently
- The time necessary and expense required to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment
- The standard of living established during the marriage
- The duration of the marriage
- The age, physical,and emotional condition of both parties
- Any financial or other contribution made by either party to the education, training, vocational skills, career, or earning capacity of the other party
- The ability of the other party to meet their needs while paying alimony
- Tax consequences
- Whether either party has foregone or postponed economic, education, or other employment opportunities during the marriage
- Any other factor which the Court expressly finds is appropriate to consider
Child Custody
The Court shall determine the child’s legal custody and residential arrangements per the child’s best interests. In determining the best interests of the child, the Court shall consider all relevant factors, including:
- The wishes of the child’s parent or parents as to their custody and residential arrangements
- The wishes of the child as to their custodian(s) and residential arrangements
- The interaction and interrelationship of the child with their parents, grandparents, siblings, persons cohabiting in the relationship of husband and wife with a parent of the child, any other residents of the household, or persons who may significantly affect the child’s best interests
- The child’s adjustment to their home, school, and community
- The mental and physical health of all individuals involved
- Past and present compliance by both parents with their rights and responsibilities to their child
- Evidence of domestic violence
- The criminal history of any party or any other household resident, including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense
Continued Child Support
Child support shall continue until the child reaches the age of 18 or graduates from high school. This duty ends when the child receives a high school diploma or attains the age of 19, whichever occurs first.
In determining the amount of support due to one to whom the duty of support is owing, the Court, among other things, shall consider:
- The health, relative economic condition, financial circumstance, income, including the wages, and earning capacity of the parties, including the children
- The manner of living to which the parties have been accustomed when they were living under the same roof
- The general equities that were inherent in the situation
Same-Sex Divorce
On June 26, 2015, the U.S. Supreme Court ruled that gay marriage is a right protected by the U.S. Constitution in all 50 states. It follows, therefore, that the rights and obligations between same-sex divorcing parties are subject to the same dissolution laws of that state. Reference: U.S. Supreme Court Opinion: Obergefell v. Hodge
Spouse Legal Name Change
Upon the request of a party by pleading or motion, the Court may order that such party resume a maiden or former name. If the change request was not made before the divorce decree was issued by the court, the party may still, through counsel, obtain a legal name change after the divorce.
Watch Delaware Divorce Attorney Ron Poliquin Explain His Ten Legal Tips If You’re Getting A Divorce:
Delaware Family Law Courts
The Delaware Family Court is a statewide Court system with branches in Kent County, Dover, New Castle County, Wilmington, and Sussex County, Georgetown.
Delaware Family Court (Delaware Courts – Family Court)
Delaware State Courts Self-Help (Delaware Courts – Judicial Branch
Delaware Child Support Enforcement
PO Box 11223
Wilmington, Delaware 19850
Office: (302) 395-6500
Fax: (302) 395-6733
Customer Service: (302) 577-7171
