Delaware Divorce Laws

Delaware Divorce Laws
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Delaware Divorce Laws

RESIDENCY REQUIREMENTS AND WHERE TO FILE:

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. [Based on Delaware Code - Title 13 - Chapters: 1504, 1507]

LEGAL GROUNDS FOR DIVORCE:

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.

Bona fide efforts to achieve reconciliation prior to 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-day period immediately preceding the day the Court hears the petition for divorce. [Based on Delaware Code - Title 13 - Chapters: 1505]

SIMPLIFIED OR SPECIAL DIVORCE PROCEDURES:

If 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, the petition is uncontested, and the action will be tried without further notice by the Family Court.

[Based on Delaware Code - Title 13 - Chapters: 1508]

LEGAL SEPARATION:

Under Delaware law, in order 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 with your spouse of have sexual relations with your spouse.

[Based on Delaware Code - Title 13 - Chapters: 1505]

MEDIATION OR COUNSELING REQUIREMENTS:

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, and all counseling or interviews shall be confidential and privileged and only the fact that further efforts at reconciliation are impractical or not in the interest of the parties 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 course. [Based on Delaware Code - Title 13 - Chapters: 1507 and 1517]

PROPERTY DISTRIBUTION:

Delaware is an equitable distribution state, meaning that the property and debts acquire 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 in lieu 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 is 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.
  • Whether the property was acquired by gift (Property transferred by gift from 1 spouse to the other during the marriage is marital property.)
  • The debts of the parties.
  • Tax consequences.

Property acquired by an individual spouse by bequest, devise or descent or by gift, except gifts between spouses, provided the gifted property is titled and maintained in the sole name of the donee spouse, or a gift tax return is filed reporting the transfer of the gifted property in the sole name of the donee spouse or a notarized document, executed before or contemporaneously with the transfer, is offered demonstrating the nature of the transfer. [Based on Delaware Code - Title 13 - Chapters: 1513]

ALIMONY/MAINTENANCE/SPOUSAL SUPPORT:

A party may be awarded alimony only if he or she is a dependent party after consideration of all relevant factors in that he or she:

  • 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 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.

The alimony order shall be in such amount and for such time as the Court deems just, 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 him or her, and his or her ability to meet all or part of his or her 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.
  1. Any financial or other contribution made by either party to the education, training, vocational skills, career or earning capacity of the other party.
  2. The ability of the other party to meet his or her needs while paying alimony.
  3. Tax consequences.
  4. Whether either party has foregone or postponed economic, education or other employment opportunities during the course of the marriage.
  1. Any other factor which the Court expressly finds is just and appropriate to consider.

A person shall be eligible for alimony for a period not to exceed 50% of the term of the marriage with the exception that if a party is married for 20 years or longer, there shall be no time limit as to his or her eligibility. Unless the parties agree otherwise in writing, the obligation to pay future alimony is terminated upon the death of either party or the remarriage or cohabitation of the party receiving alimony. [Based on Delaware Code - Title 13 - Chapters: 1512]

SPOUSE'S NAME:

The Court, upon the request of a party by pleading or motion, may order that such party resume a maiden or former name. [Based on Delaware Code - Title 13 - Chapters: 1514]

CHILD CUSTODY:

The Court shall determine the legal custody and residential arrangements for a child in accordance with the best interests of the child. 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 his or her custody and residential arrangements.
  • The wishes of the child as to his or her custodian(s) and residential arrangements.
  • The interaction and interrelationship of the child with his or her 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 his or her 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 resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.

The Court shall not presume that a parent, because of his or her sex, is better qualified than the other parent to act as a joint or sole legal custodian for a child or as the child's primary residential parent, nor shall it consider conduct of a proposed sole or joint custodian or primary residential parent that does not affect his or her relationship with the child.

[Based on Delaware Code - Title 13 - Chapter 722]

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 has been found to be 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 inherent in the situation. (59 Del. Laws, c. 567, § 1.)

[Based on Delaware Code - Title 13 - Chapters 501, 514]

PREMARITAL AGREEMENT:

A premarital agreement must be in writing and signed by both parties. It is enforceable without consideration. A premarital agreement is not enforceable if the party against whom enforcement is sought proves that the party did not execute the agreement voluntarily; or that the agreement was unconscionable when it was executed and, before execution of the agreement, that party:

  • Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party.
  • Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.
  • Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

A party who has in writing before, during or after the marriage waived or released his or her right to alimony shall have no remedy under this section. [Based on Delaware Code - Title 13 - Subchapter 2 and Chapters: 1512]