Delaware Divorce Basics

Find the laws and rules for getting a divorce in Delaware.

Delaware Divorce Basics

This article explains the laws and rules for getting a divorce in Delaware. The same laws and procedures will apply to same-sex and opposite sex couples who wish to dissolve a civil union entered into after January 1, 2012.

Grounds for Divorce

In Delaware, either spouse may file for divorce if the marriage is irretrievably broken. A marriage is irretrievably broken if the couple is voluntarily separated, incompatible, or separated due to one spouse's misconduct or mental illness.  

Residency Requirement and Waiting Period

You or your spouse must live in Delaware for six months before you can file a petition for divorce. The court will then set a hearing date based on whether the divorce is contested and can enter a judgment after that hearing.

Property Division in Delaware

Delaware uses a system of equitable division to divide marital property. If you and your spouse are unable to agree on how to divide your property, the court will distribute property based on what is fair after considering factors such as whether property is being awarded instead of alimony, the value of your property and debts, and each party's economic circumstances. Marital property includes any real property, personal possessions, and income that either spouse acquired during the marriage. Any property that you acquired before marriage or through gift or inheritance during the marriage is considered your separate property and is not subject to division. Gifts between spouses are an exception and are considered marital property.

Alimony

A spouse may be awarded alimony after the court considers factors like the financial status of both spouses, whether the parties are able to support themselves, the time and expense necessary for either spouse to receive job or educational training, and the standard of living and duration of the marriage. All of the factors the court considers can be found here. In general, alimony lasts for half the length of the marriage - for example, if you were married for six years, the alimony order probably won't last more than three years. (But, if your marriage was longer than 20 years, there usually won't be an order about when alimony ends.) The obligation to pay alimony ends when either party dies, or when the person receiving alimony remarries or begins living with another partner. Unless the court orders otherwise, you may request a change to the order if you or your spouse's circumstances change significantly.

Child Support

Parents have a duty to financially support a child of a marriage until the child reaches age 19 or graduates from high school, whichever occurs first. Courts use a support formula to calculate child support and also take into account the health, financial circumstances, income, and earning capabilities of the parties as well as the standard of living the child is used to.   The Division of Child Support Enforcement is responsible for enforcing child support orders in Delaware and may withhold income from your paycheck if you owe child support.

Child Custody

The court decides on the legal and physical custody of a child in according to the best interests of the child and without regard to the sex of the parent. In doing so, the court will look at many factors including the wishes of the parents and child, the mental and physical health of the parents and child, the child's adjustment to home and school, and the history of the child's relationship with each parent. Judges will also take into consideration the parents' proposed parenting plan if they have one, and in general will approve agreements between parents relating to custody and visitation. Courts will generally order a schedule that ensures that the child has frequent contact with both parents. An order for custody and visitation may be modified at any time if it is in the best interest of the child. However, if there has been a full court hearing about legal custody, you may only request a modification two years after the order was made unless the child may be in physical or emotional danger.

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