How to File Divorce in Delaware

How to File Divorce in Delaware

Divorce is often an ugly process, but here are some of the basics you need to know to make it go as smoothly as possible in Delaware.  Here is how to file for divorce in Delaware-

You must be a resident

The Delaware courts will only grant a divorce if one of the spouses resided in Delaware for six months or more before filing for divorce.  Being stationed in the state with the military will count as well.

Grounds for divorce

The only grounds for divorce in Delaware is that the marriage is “irretrievably broken.”  This is generally considered a “no-fault” ground for divorce, and indeed the law says a marriage can be irretrievably broken as shown by a voluntary separation.  This just means the parties decided to go their separate ways and nobody necessarily did anything wrong. Courts generally cannot grant a divorce until the parties have been separated for at least six months, but the court can issue interim orders to resolve issues as needed before the final divorce decree.  

A marriage in Delaware can also be found irretrievably broken because of one spouse’s misconduct, mental illness, or incompatibility.

This misconduct provision acts very much like a “fault” divorce.  Until recent decades, you could not get a divorce in America without proving that your spouse did something wrong.  Couples that mutually wanted to split would often fake an affair to get a divorce. Now, that process only exists because it might help a spouse with property division or child custody issues or with speeding along the process.

Grounds for divorce in Delaware

Issues resolved in a divorce

In Delaware, you can file a petition simply asking to get divorced.  Some couples may just split up their bank account without any kind of court order on property division.  They can obtain a divorce decree and then go their separate ways.

If you would like to, you can also ask the court for

  1. Alimony
  2. Property disposition
  3. Resumption of prior name
  4. Costs and attorneys’ fees
  5. Child support
  6. Custody and/or visitation of a child

Under Delaware law, parents are presumed to have joint custody and one parent must petition the court to obtain support or a different custody arrangement.  The law generally requires a parental education class and an effort at mediation to help resolve conflicts.

File a divorce in Delaware in court

In Delaware, the only hard time limitation is the six months of separation generally needed before your divorce decree can be granted.  For that reason, you may not have any need to rush into court before resolving issues of money and child care with your spouse. This would allow you to proceed down the “uncontested” divorce track.  If both parties agree to the resolution of their case, they can ask that the judge decide “on the papers” meaning that the divorce is approved without the couple ever having to show up in court.  Delaware has developed a detailed instructional guide and forms that can be used to make sure your agreement is approved easily.  

If you and your spouse cannot agree on a resolution of your divorce, then one of you must file a petition and the other spouse will be required to file an answer.  The spouses will each lay out what they are asking the court for and the court will eventually make a ruling.

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