Divorce – State FAQ – Delaware
Residency requirements, venue and procedures
Q: How long must I have lived in Delaware prior to filing for divorce in an Delaware court?
A: At least one of the parties to the action for divorce must have resided within the State of Delaware for at least six continuous months immediately prior to the commencement of the action for divorce. The petition may be filed in the county where either party resides.
Q: What are the terms used to identify the parties in a divorce proceeding?
A: The party filing the action is called the Petitioner, while the other party to the divorce is referred to as the Respondent.
Q: What is “venue,” and what is the proper venue for a divorce case?
A: “Venue” refers to which type of court and in what locality the case is filed. In Delaware, proper venue for the divorce action is the Family Court.
Q: What is the title of the document initiating the action for divorce? The order granting the divorce?
A: The title of the document initiating the divorce proceeding is a Petition for Divorce, while the title of the order granting the divorce is referred to as the Decree of Divorce.
Q: Are there any waiting periods associated with a divorce action?
A: No divorce shall be granted until after the parties have been separated for a period of six months.
Grounds for divorce
Q: What is meant by “grounds for divorce”?
A: A “ground” for divorce is a “reason” for divorce. A set of judicially recognized reasons for divorce exist in Delaware. You must use one or more of these reasons to justify your divorce.
Q: What are the recognized grounds for divorce in Delaware?
A: A decree of divorce will be granted in the State of Delaware upon a finding that the marriage is irretrievably broken and that reconciliation is improbable. A marriage is irretrievably broken where it is characterized by:
1. Voluntary separation;
2. Separation caused by the respondent’s misconduct;
3. Separation caused by the respondent’s mental illness; and,
4. Separation caused by incompatibility.
Simplified divorce proceeding
Q: Is a simplified divorce proceeding provided for by Delaware law?
A: Although there is no simplified divorce proceeding in the State of Delaware, the respondent may file an answer and waiver of service of process, thereby dispensing with further service and notice issues in the proceeding. If the divorce is uncontested, the court shall rule on the petition at a hearing which only the petitioner need attend and testify.
Q: What does the term “spousal support” (or, “alimony”) mean?
A: “Spousal support” (sometimes called “alimony”) is money paid by one spouse to the other due to the payee spouse’s loss of the benefit of the payor spouse’s income due to the divorce.
Q: Is spousal support available while the divorce is pending in court, or only after the divorce has become final?
A: The court may order that one spouse support the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action.
Q: What is the duration of alimony payments?
A: Unless the parties were married for 20 years or longer, the term of an award of alimony shall not exceed one half the term of the marriage. Any person awarded alimony has a continuing obligation to make good faith efforts to seek appropriate vocational training and employment, unless the court specifically finds that it would be inequitable to require the party to do so. Unless otherwise agreed in writing, the obligation to pay alimony terminates upon the death of either party or the remarriage or cohabitation of the party receiving alimony.
Q: What factors will the court consider when determining how much alimony to award to a party?
A: The court will award alimony, without regard to fault, in such amount and for such times as the court deems appropriate, after consideration of the factors listed in the Delaware Divorce Information Section on the Delaware Divorce Main Page.
Q: On what basis does the court decide how marital property is divided?
A: Delaware is a so-called “equitable distribution” state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. While the trial court’s discretion will not be disturbed on appeal without a showing of clear abuse, the court will consider the factors enumerated on the Delaware Divorce Main Page.
Q: Is the “separate property” of one spouse subject to being divided up?
A: The question here is whether property “belonging to” one of the parties should be included in the marital estate for purposes of an equitable division. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.
Q: What if the parties occasionally use an item of separate property (for example, silver table utensils inherited by the wife) for the benefit of both parties?
A: The property may be subject to division. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.
Child custody and visitation
Q: What is child custody and visitation?
A: “Child custody” refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. “Visitation” is the topic of the non custodial parent’s ability to visit/spend time with the child(ren).
Q: If the parents cannot agree on child custody and visitation issues, on what basis will the court decide?
A: The court shall determine the custody of any minor children of the marriage based upon the best interests of the child. In determining the child’s best interests, the court shall consider the following factors:
1. The wishes of the parents;
2. The wishes of the child;
3. The interaction and interrelationship of the child with parents, grandparents, siblings and any other person whose relationship significantly affects the child;
4. The child’s adjustment to home, school and community;
5. The physical and mental health of all parties; and,
6. Evidence of domestic violence.
Q: What is “child support”?
A: Child support is money paid by the non custodial parent to the custodial parent in order to meet the needs of the child(ren).
Q: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?
A: Each party has a duty to support any minor children of the marriage. In determining the amount of support to be awarded, the court will consider many factors, including:
1. The health, relative economic condition, financial circumstance, income, including the wages, and earning capacity of the parties, including the children;
2. The manner of living to which the parties have been accustomed when they were living under the same roof;
3. The general equities inherent in the situation.