Divorce In Delaware
What Are Grounds for Divorce in Delaware?
Delaware has two types of grounds for divorce: fault-based and no-fault. Understanding the differences between these two types is essential when filing for divorce, as it determines the basis for the dissolution of the marriage and can impact the overall outcome.
A. Fault-based divorce
Fault-based divorce is when one spouse claims that the other spouse’s misconduct caused the marriage breakdown. In Delaware, Title 13, § 1505 of the Delaware Code outlines the fault-based grounds for divorce, which include:
- Adultery is when one spouse engages in sexual relations with someone other than their spouse (e.g., Perkins v. Perkins, 1988).
- Willful and continued desertion: One spouse abandons the other for at least one year without justifiable cause (e.g., In re Marriage of Foster, 1991).
- Cruelty and inhuman treatment: When one spouse inflicts physical or emotional harm on the other, making it unsafe or unhealthy to continue living together (e.g., In re Marriage of Redden, 1997).
- Insanity: When one spouse has been declared legally insane and has been confined to a mental institution for at least five years.
In a fault-based divorce, the accused spouse must provide evidence to support their claims. Proving fault can be challenging, and in some cases, it may impact the court’s decisions on property division, alimony, and child custody.
B. No-fault divorce
No-fault divorce is the most common type of divorce in Delaware. In a no-fault divorce, neither party must prove any wrongdoing or fault by the other spouse. Instead, the couple must demonstrate that reconciliation is improbable and that their marriage is irretrievably broken. According to Title 13, § 1505 of the Delaware Code, the no-fault grounds for divorce include:
- Voluntary separation: The spouses have agreed to live separately and apart without cohabitation, with the intent to end the marriage.
- Separation caused by the respondent’s misconduct: The separation is a result of one spouse’s actions that led to the breakdown of the marriage (e.g., cruelty, adultery, or desertion), but the accusing spouse is not required to provide evidence of the misconduct.
- Separation caused by incompatibility: The spouses can no longer live together due to irreconcilable differences or personality conflicts.
C. Required separation period
A no-fault divorce in Delaware requires a separation period before the divorce can be finalized. According to Title 13, § 1507 of the Delaware Code, the separation period depends on whether the couple has minor children:
- If the couple has no minor children, they must live separately and apart for at least six months before filing for divorce.
- If the couple has minor children, they must live separately and apart for at least one year before filing for divorce.
The separation period helps to ensure that the couple has had time to reflect on their decision and that reconciliation is unlikely (e.g., In re Marriage of Doe, 2003).
By understanding the grounds for divorce and the required separation period in Delaware, individuals can make informed decisions about the most appropriate path for their situation and navigate the divorce process more effectively.
Residency Requirements For Delaware Divorce
Residency requirements are essential criteria that must be met before filing for divorce in Delaware. These requirements ensure that the state can grant a divorce and make decisions related to property division, alimony, child custody, and child support.
A. Minimum residency period
According to Title 13, § 1504 of the Delaware Code, at least one spouse must meet the minimum residency requirement before filing for divorce. The residency requirement states that one of the spouses must have been a continuous resident of Delaware for at least six months immediately preceding filing the divorce petition. This requirement is in place to prevent spouses from seeking a divorce in a state where they have no substantial ties or merely to take advantage of more favorable divorce laws (e.g., Doe v. Doe, 2001).
B. Jurisdiction of the court
Jurisdiction refers to the court’s authority to hear and decide a case. In Delaware, the Family Court has jurisdiction over all divorce cases. The petition must be submitted to the Family Court in the county where either spouse resides. Once the court establishes jurisdiction, it can make decisions related to the divorce, such as property division, alimony, child custody, and child support.
In some cases, the court may also need to determine personal jurisdiction over a non-resident spouse, especially if the spouse lives out of state or out of the country. Establishing personal jurisdiction is crucial for the court to make binding decisions related to property division or spousal support that involve the non-resident spouse. Personal jurisdiction can be established if the non-resident spouse consents to the court’s jurisdiction or has sufficient minimum contacts with the state (e.g., Long-arm statute, as per Title 10, § 3104 of the Delaware Code, and the case of Wilmington Trust Co. v. Wilmington Trust Co., 2002).
Meeting the residency requirements and ensuring the appropriate court has jurisdiction are essential steps in the divorce process. By understanding these requirements, individuals can ensure their divorce proceedings are conducted legally and efficiently within the Delaware court system.
Filing for Divorce
Initiating the divorce process in Delaware involves:
- Filing the necessary forms and documents.
- Paying the required fees.
- Serving the other spouse with the divorce papers.
Understanding each step can help streamline the process and ensure a smoother legal experience.
A. Necessary forms and documents ( Free Download)
The first step in filing for divorce is to complete the required forms and documents. These forms can be obtained from the Delaware Family Court or its website. The essential forms include:
Form 442 – Petition for Divorce—> Download Now
The primary document that outlines the grounds for divorce, residency requirements, and other pertinent information about the marriage .
Form 240 – Information Sheet—> Download Now
A form containing the parties’ contact information, social security numbers, and other identifying details .
Form 441 Vital Statistics Sheet—> Download Now
It is a standardized form used to collect demographic and statistical information about the divorcing parties, such as names, addresses, birthdates, and marriage details, which is then submitted to the Delaware Health and Social Services Division of Public Health for record-keeping purposes.
Form 441- SS Vital Statistics Same Sex Marriage—> Download Now
This is a vital statistics sheet used in same sex marriage. Similar to the Form 441, it collects demographic and statistical information about the divorcing parties, such as names, addresses, birthdates, and marriage details, and is submitted to the Delaware Health and Social Services Division of Public Health for record-keeping purposes, specifically for same-sex marriages.
Form 400 – Request for Notice —> Download Now
A form used to request updates on the case status and notifications of any hearings or court events .
If the divorce involves child custody, visitation, or child support, additional forms, such as the Affidavit of Children’s Rights (Form 369) and the Financial Statement (Form 509), may be required.
Other forms which may be required on case to case basis are listed below:
Form 279 – Affidavit of Children’s Rights —> Download Now
This form is a sworn statement by the filing parent, acknowledging their understanding of the children’s rights, the importance of maintaining meaningful relationships with both parents and their responsibility to act in the children’s best interests throughout the divorce process.
Form 443 – Stipulation to Incorporate Separation Agreement —> Download Now
This form is used when both parties have agreed on all aspects of their divorce, including property division, child custody, and support. The form outlines the terms of their agreement and requests that the court incorporate the separation agreement into the final divorce decree, making it legally binding and enforceable.
Form 241 – Affidavit of Unknown Address —> Download Now
This document is used when the filing party cannot locate the other spouse to serve them with divorce papers. The form is a sworn statement that the petitioner has made reasonable efforts to find the respondent but has yet to be successful. It requests that the court permit service by publication or another alternative method.
Form 405 – Affidavit of Non-Military Service —> Download Now
This is a required document which verifies that the respondent (the spouse receiving the divorce papers) is not currently serving in the military. This form is necessary to ensure compliance with the Servicemembers Civil Relief Act (SCRA), which provides certain legal protections to active-duty military members in civil actions, including divorce cases.
Form 420 – Waiver of Rights under the Servicemembers’ Civil Relief Act —> Download Now
This is required when the respondent is an active-duty military member. By signing this form, the respondent voluntarily waives their legal protections under the Servicemembers Civil Relief Act (SCRA), allowing the divorce process to proceed without the additional protections afforded to active-duty servicemembers.
Form 421 – Affidavit That a Partys SSN is Unknown —> Download Now
This form is required when the filing party does not know the other spouse’s Social Security Number (SSN). This form is a sworn statement confirming that the petitioner has made reasonable efforts to obtain the respondent’s SSN but has yet to be successful. It is submitted to the court as part of the divorce filing process.
Form 446 – Request to Proceed without a Hearing —> Download Now
Required when both parties have agreed on all aspects of their divorce and wish to finalize the process without appearing in court. By submitting this form, the parties request that the court review their submitted documents and issue a final divorce decree without scheduling a hearing.
Form 447 – Affidavit in Support of Request to Proceed without Hearing —> Download Now
This document is required when the parties have submitted Form 446, Request to Proceed without a Hearing. This affidavit serves as a sworn statement confirming that all necessary documents, agreements, and forms have been properly completed and submitted and that there are no unresolved issues or disputes, allowing the court to finalize the divorce without scheduling a hearing.
Form 850 – Affidavit of Mailing —> Download Now
This is required in Delaware divorce proceedings when the petitioner must prove that they have properly served the respondent with divorce papers or other legal documents by mail. This form is a sworn statement confirming that the required documents were sent to the respondent’s last known address via first-class mail in compliance with the court’s service requirements.
Form 449 – Form of Order – Ancillary Financial Disclosure Report —> Download Now
This form is needed when the court orders a party to provide additional financial information during the divorce process. The judge uses this form to outline the specific financial disclosures required from the party, such as income, expenses, assets, or debts, to ensure a fair and equitable division of property, alimony, or child support determination.
Form 466 – Ancillary Pretrial Stipulation —> Download Now
This is required when the parties prepare for an ancillary hearing to resolve issues related to property division, alimony, child custody, or child support. This form outlines the agreed-upon facts and the disputed issues between the parties, helping streamline the hearing process by providing the court with a clear understanding of the matters to be decided.
B. Filing fees
There are fees associated with filing for divorce in Delaware. As of September 2021, the filing fee for a divorce petition is $150. This fee is subject to change, so verifying the current amount with the local Family Court is essential. In some cases, if the petitioner cannot afford the filing fees, they may request a waiver by filing an Application for Proceeding in Forma Pauperis (Form 257).
C. Ways to serve divorce papers to the other spouse
After filing the divorce petition and other necessary documents, the petitioner must serve their spouse, the respondent, with copies of the divorce papers. This process, known as the “service of process,” ensures that the respondent is aware of the divorce proceedings and has an opportunity to respond. In Delaware, the service of process can be completed through several methods:
- Personal service: The divorce papers can be hand-delivered to the respondent by the local Sheriff’s Office or a private process server.
- Certified mail: The divorce papers can be sent to the respondent via certified mail with the return receipt requested.
- Service by publication: If the respondent cannot be located after making reasonable efforts, the petitioner can request the court’s permission to serve the divorce papers through publication in a local newspaper.
Once the respondent has been served, they have 20 days to file an answer or other responsive pleadings with the court (Title 13, § 1509 of the Delaware Code).
Individuals can initiate the divorce process in Delaware and move toward resolving their marital issues in the Family Court by ensuring that the necessary forms and documents are filed correctly, paying the appropriate fees, and adequately serving the other spouse.
Division of Assets and Debts in Delaware Divorce
The division of assets and debts during a divorce is governed by the principle of equitable distribution. This means the court will divide the marital property and debts fairly between the spouses, although not equally. Understanding the concepts of equitable distribution, separate and marital property, and the factors the court considers can help individuals navigate the property division process more effectively.
A. Equitable distribution
Equitable distribution ensures that both spouses receive a fair share of marital property and debts upon divorce. Delaware courts have broad discretion to divide assets and liabilities based on various factors and circumstances surrounding the marriage (Title 13, § 1513 of the Delaware Code). Unlike community property states, where marital property is divided equally, equitable distribution allows the court to consider each spouse’s needs, contributions, and other relevant factors when deciding.
B. Separate and marital property
In Delaware, the property is categorized into separate property and marital property. Separate property includes assets and debts acquired before marriage, gifts or inheritances received by one spouse during the marriage, and property explicitly designated separately through a prenuptial or postnuptial agreement. Separate property is typically not subject to division during a divorce and remains with the original owner.
Marital property, on the other hand, consists of assets and debts acquired during the marriage, regardless of which spouse’s name is on the title. This can include real estate, vehicles, bank accounts, retirement accounts, businesses, and household items. Marital property is subject to equitable distribution by the court.
C. Factors considered by the court
Delaware courts consider several factors outlined in Title 13, § 1513 of the Delaware Code when determining an equitable distribution of marital property and debts. These factors include, but are not limited to:
- The length of the marriage
- Each spouse’s age, health, and earning capacity
- The standard of living established during the marriage
- Each spouse’s contributions to the acquisition, preservation, or appreciation of the marital property, including contributions as a homemaker
- The value of each spouse’s separate property
- Each spouse’s economic circumstances and future financial needs
- Any tax consequences resulting from the property division
- Any other relevant factors the court deems necessary
In some cases, the court may also consider marital misconduct, such as adultery or abuse, when dividing marital property. For example, in the case of Wife v. Husband, 2010 WL 5576205 (Del. Fam. Ct. 2010), the court considered the husband’s adultery and the depletion of marital assets due to his affair when dividing the marital property.
By understanding the concepts of equitable distribution, separate and marital property, and the factors the court considers, individuals can better prepare for the property division process during a divorce in Delaware.
Alimony (Spousal Support) in Delaware
Alimony, or spousal support, is a payment made by one spouse to the other to provide financial assistance during or after a divorce. In Delaware, the court has discretion in determining whether to award alimony, the type of alimony awarded, and the duration and amount of payments. Understanding the different kinds of factors the court considers and how alimony can be modified or terminated is essential for individuals going through a divorce.
A. Types of Alimony
In Delaware, there are three primary types of alimony:
- Temporary alimony: Also known as pendente lite alimony, temporary alimony is awarded during the divorce proceedings to help the lower-income spouse maintain their financial stability. This type of alimony typically ends when the divorce is finalized.
- Short-term alimony: Short-term alimony, or rehabilitative alimony, is awarded for a limited period to help the lower-income spouse become self-sufficient. This alimony may be granted to a spouse who needs time to acquire education, training, or work experience to re-enter the job market.
- Long-term alimony: Also known as permanent alimony, long-term alimony is awarded in cases where the lower-income spouse is unable to become financially self-sufficient due to age, disability, or other factors. This alimony continues for an extended period, typically until the recipient remarries or either spouse passes away.
B. Factors considered in determining alimony
Delaware courts consider several factors when determining whether to award alimony and the payment amount and duration. According to Title 13, § 1512 of the Delaware Code, these factors include, but are not limited to:
- The financial resources of each spouse, including their separate property and their ability to meet their needs independently
- The length of the marriage
- The age, physical, and emotional condition of both spouses
- The standard of living established during the marriage
- Each spouse’s earning capacity and employability
- The needs of the spouse seeking alimony
- Any tax consequences resulting from the alimony award
Although there isn’t a strict formula, the courts may use some general guidelines to help determine the amount of alimony. One approach is to calculate the difference between the spouses’ incomes and award a percentage of that difference as alimony. However, this method is not binding, and the courts have the discretion to deviate from it based on the specific circumstances of each case.
Let’s consider a hypothetical couple, Partner A and Partner B, divorcing in Delaware. Partner A earns $100,000 yearly, while Partner B makes $30,000 yearly. Their incomes differ from $70,000 ($100,000 – $30,000). The court may decide to award Partner B 30% of the difference as alimony, amounting to $21,000 per year ($70,000 * 0.3).
This example is for illustration and should not be considered legal advice. The amount of alimony awarded in a case will depend on the specific factors and circumstances the court considers.
C. Modification and termination of alimony
In Delaware, alimony can be modified or terminated under certain circumstances. According to Title 13, § 1519 of the Delaware Code, the court may modify alimony if there is a substantial change in circumstances, such as a significant change in either spouse’s income or financial situation. For example, in the case of Wilson v. Wilson, 2011 WL 1226466 (Del. Fam. Ct. 2011), the court reduced the husband’s alimony obligation after he suffered a job loss and a significant decrease in income.
Alimony generally terminates upon the remarriage of the recipient spouse or the death of either spouse. The court may also set a specific termination date for short-term or rehabilitative alimony based on the expected time needed for the recipient spouse to become self-sufficient.
Understanding the different types of alimony factors, the court considers, and the modification and termination of alimony can help individuals prepare for the financial implications of divorce in Delaware and advocate for their needs more effectively.
Child Custody and Visitation
In Delaware, child custody and visitation issues are resolved, with the primary consideration being the child’s best interests. The court determines custody and visitation based on various factors and may establish a parenting plan to outline each parent’s rights and responsibilities. Understanding legal and physical custody, the best interests of the child standard, parenting plans, and modifications to custody and visitation arrangements is essential for parents navigating the divorce process.
A. Legal and physical custody
Child custody is divided into two main categories: legal and physical. Legal custody refers to the right and responsibility to make major decisions regarding the child’s welfare, including education, healthcare, and religious upbringing. Physical custody pertains to where the child will live and the child’s day-to-day care.
Custody can be further classified as either sole custody or joint custody. Sole custody means that one parent has either legal or physical custody, while joint custody means that both parents share legal and/or physical custody.
B. Best interests of the child’s standard
In Delaware, the primary consideration in determining child custody and visitation is the child’s best interests. Title 13, § 722 of the Delaware Code outlines the factors that the court considers when determining the child’s best interests. These factors include, but are not limited to:
- The wishes of the child’s parents and the child (if the child is of sufficient age and maturity)
- The child’s relationship with each parent, sibling, and other significant people in their life
- The child’s adjustment to home, school, and community
- Each parent’s ability to provide a stable and nurturing environment for the child
- Each parent’s willingness to foster a relationship between the child and the other parent
- Any history of domestic violence or abuse
C. Parenting plans
A parenting plan is a detailed document that outlines each parent’s rights and responsibilities regarding custody and visitation. It may include provisions about decision-making authority, residential arrangements, transportation, holidays, and parental communication. Delaware courts encourage parents to develop their parenting plan, but if the parents cannot agree, the court will establish a plan based on the child’s best interests.
D. Modifications to custody and visitation arrangements
Custody and visitation arrangements are not set in stone and can be modified if a substantial change in circumstances affects the child’s best interests. To request a modification, a parent must file a petition with the court, and the court will evaluate the change in circumstances and the child’s best interests.
In the case of Williams v. Williams, 2016 WL 11388463 (Del. Fam. Ct. 2016), the court granted the father’s request for a modification of the custody and visitation arrangements after it was determined that the mother had repeatedly interfered with the father’s visitation rights and had not acted in the child’s best interests.
Understanding the concepts of legal and physical custody, the best interests of the child standard, parenting plans, and modifications to custody and visitation arrangements can help parents effectively navigate the divorce process and advocate for their child’s well-being.
Both parents are responsible for financially supporting their children, and child support is determined based on the Delaware Child Support Guidelines. Understanding the guidelines, factors considered in determining child support, and how child support can be modified and enforced is essential for parents navigating the divorce process.
A. Delaware Child Support Guidelines
Delaware Child Support Guidelines are established under Title 13, § 506 of the Delaware Code. The guidelines use an “income shares” model, which considers both parents’ incomes and allocates the financial responsibility for the child proportionally. The procedures include a formula calculating the primary child support obligation, assuming both parents’ adjusted gross incomes, the number of children, and other relevant factors.
B. Factors considered in determining child support
In determining the child support obligation, the court considers several factors, including:
- Both parents’ gross incomes: Gross income includes wages, salaries, bonuses, commissions, and other sources of income such as rental income, investment income, and Social Security benefits.
- Deductions: Allowable deductions include self-employment taxes, mandatory retirement contributions, and health insurance premiums for the child.
- The number of children: The basic child support obligation increases with the number of children involved.
- The custody arrangement: The amount of child support may be affected, particularly if there is shared or split custody.
- Childcare and educational expenses: The court may also consider childcare costs, private school tuition, or other extraordinary educational expenditures when determining the child support amount.
- Healthcare expenses: The court may allocate responsibility for the child’s health insurance coverage and uninsured medical costs between the parents.
C. Child support calculation using an example
Child support is calculated using the state’s Child Support Guidelines, which follow the “income shares” model. This model considers both parents’ incomes and allocates the financial responsibility for the child proportionally. Here’s a step-by-step example of how child support might be calculated in Delaware:
- Determine both parents’ monthly gross incomes: Let’s assume Parent A earns $4,000 monthly and Parent B earns $6,000 monthly.
- Combine the parents’ monthly gross incomes: Parent A: $4,000 + Parent B: $6,000 = $10,000 combined monthly income.
- Consult the Delaware Child Support Schedule: For this example, let’s assume the couple has one child. Based on the Delaware Child Support Schedule, the basic child support obligation for one child with a combined monthly income of $10,000 is $1,437 per month.
- Calculate each parent’s share of the basic child support obligation: Parent A’s income share: ($4,000 / $10,000) = 40%. Parent B’s income share: ($6,000 / $10,000) = 60%
Parent A’s child support obligation: 40% of $1,437 = $574.80. Parent B’s child support obligation: 60% of $1,437 = $862.20
- Adjust for custody arrangements and other expenses: In this example, let’s assume Parent A has primary physical custody of the child. Parent B is required to pay Parent A $862.20 per month in child support. This amount may be adjusted based on healthcare, childcare, educational expenses, or the specific custody arrangement.
Please note that this example is for illustration purposes only and should not be considered legal advice. The actual child support amount will depend on each case’s specific factors and circumstances. It is essential to consult with an experienced family law attorney in Delaware to help navigate the complexities of child support calculations and advocate for a fair and equitable outcome.
D. Modification and enforcement of child support
Child support orders can be modified if there is a substantial change in circumstances, such as a significant increase or decrease in either parent’s income, a change in custody arrangements, or a change in the child’s needs. To request a modification, a parent must file a petition with the court, and the court will evaluate the change in circumstances and the child’s best interests.
Enforcement of child support orders in Delaware is handled by the Division of Child Support Services (DCSS). Suppose a parent fails to pay child support as ordered. In that case, DCSS can take various enforcement actions, such as wage garnishment, interception of tax refunds, suspension of driver’s licenses, or even initiating contempt proceedings in court.
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