Delaware State Divorce Laws

Divorce & Family Law Summary

U.S. Divorce Laws are enacted by each state using their respective legislative process. Once legislation is enacted into law, the divorce courts in Delaware have the authority to manage the divorce proceedings, including spousal support and child support payments, custodial rights of parents, and the division of community property.

Since state laws are repealed and amended frequently, it is always advisable to consult with an experienced divorce lawyer before making important decisions about your marriage.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. 

Read our expanded article on the divorce process for a deeper and more realistic understanding of the challenges you’re likely to face.

RESIDENCY REQUIREMENTS

To file for a divorce in Delaware, a person must have resided in the state for six months and be separated from the respective spouse (i.e., can’t sleep in the same bedroom or have sexual relations). The paperwork may be filed in the county in which either spouse resides. 

GROUNDS FOR DIVORCE – NO-FAULT

The Court shall enter a decree of divorce whenever it finds that the marriage is irretrievably broken and that reconciliation is improbable due to:

• Voluntary separation;
• Separation caused by respondent’s misconduct;
• Separation caused by respondent’s mental illness;
• Separation caused by incompatibility.

Bonafide efforts to achieve reconciliation before divorce, even those that include temporarily, sleeping in the same bedroom and resumption of sexual relations, shall not interrupt any period of living separate and apart, provided that the parties have not occupied the same bedroom or had sexual relations with each other within the 30 days immediately preceding the day the Court hears the divorce petition.

SPECIAL DIVORCE PROCEDURES

Suppose the person responding to the petition does not file an Answer within 20 days of receiving the Petition for Divorce OR files an Answer agreeing with the request for a divorce. In that case, the petition is uncontested, and the action will be tried without further notice by the Family Court.

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. You can still be separated if you live in the same house so long as you do not share the same bedroom or have sexual relations with your spouse.

MEDIATION – COUNSELING

In contested cases, the Court may either rule upon the petition or continue the matter with the consent of both parties for further hearing not more than 60 days later. During this time, the parties may seek counseling, either with a qualified private counselor or an accredited counseling agency, public or private. No party who objects shall be forced to submit to counseling. All counseling or interviews shall be confidential and privileged. Only the fact that further efforts at reconciliation are impractical or not in the parties’ interest shall be reported to the Court.

In any case, where there are living children of the marriage up to the age of 17, the Court shall order that the parties pay for and participate in a “Parenting Education Course” unless the Court, upon motion, determines that participation in the course is deemed not necessary. Parties do not have to attend the same class.

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 to 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; and
• Tax consequences.

ALIMONY & MAINTENANCE

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:

1. 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;

2. The time necessary and expense required to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment;

3. The standard of living established during the marriage;

4. The duration of the marriage;

5. The age, physical and emotional condition of both parties;

6. Any financial or other contribution made by either party to the education, training, vocational skills, career, or earning capacity of the other party;

7. The ability of the other party to meet their needs while paying alimony;

8. Tax consequences;

9. Whether either party has foregone or postponed economic, education, or other employment opportunities during the marriage; and

10. Any other factor which the Court expressly finds is and appropriate to consider.

SPOUSE’S LEGAL NAME

Upon the request of a party by pleading or motion, the Court may order that such party resume a maiden or former name.

CHILD CUSTODY

The Court shall determine the legal custody and residential arrangements for a child per the child’s best interests. In determining the best interests of the child, the Court shall consider all relevant factors, including:

1. The wishes of the child’s parent or parents as to their custody and residential arrangements;

2. The wishes of the child as to their custodian(s) and residential arrangements;

3. 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;

4. The child’s adjustment to their home, school, and community;

5. The mental and physical health of all individuals involved;

6. Past and present compliance by both parents with their rights and responsibilities to their child;

7. Evidence of domestic violence;

8. 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 age of 18 or until the child graduates from high school. This duty ends when the child receives a high school diploma or attains age 19, whichever event first occurs. 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. Hodges