How Do I file for Divorce in Delaware
Here are the basic forms you'll need to file and steps you'll need to take to start the divorce process in Delaware.
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Divorce is a complicated and emotional process, which involves more than just ending a marriage. You also have to consider things like property division, alimony, child custody and child support. If you and your spouse can't agree on these issues, you should speak with an attorney.
If you proceed without a lawyer, the process can be confusing. A court will expect you to follow the same rules and regulations that attorneys must follow, and court staff can't give you legal advice or tell you how to protect your interests – only a lawyer can do that. If at any point in your divorce you become unsure about representing yourself, you should consult an attorney.
Whether you go it alone or hire a lawyer, your divorce will go faster if you and your spouse can agree on as many issues as possible before you begin the process.
Types of Divorce in Delaware
Spouses in Delaware may seek a "contested" or an "uncontested" divorce - each is processed differently.
A contested divorce means that your spouse challenges the information you put in the petition, like the grounds for the divorce. Courts automatically schedule hearings in contested divorces. You should consult a lawyer for help with a contested divorce.
Your divorce is uncontested if your spouse doesn't file an Answer (response) to your petition within 20 days of receiving it, or your spouse files an answer agreeing with your request for a divorce. If your divorce is uncontested, you must choose between the following two proceedings:
- the court may decide the divorce based solely on the papers that are filed, without you or your spouse appearing in court for a hearing, or
- the court may decide the divorce after a hearing, which you must attend - your spouse may attend but isn't required to.
If your divorce is uncontested, but you or your spouse asked the court to divide property or award alimony, you will have to appear for a hearing in front of a judge - unless you settle the issues beforehand.
Before Filing for Divorce
If you are seeking a no-fault divorce, you and your spouse must have been separated for at least six months before you can file. In Delaware, you can still be separated if you live in the same house, so long as you don’t share the same bedroom or have sexual relations with your spouse. If you're filing for divorce because of some misconduct by your spouse, also called "fault-based" grounds, like abuse or adultery, you can file for divorce at any time.
If you and your spouse have children together (under the age of 18), you both have to attend a parent education class. You can file for divorce before taking the class, but the court won’t proceed until you and your spouse submit certificates of completion. The Delaware Courts website provides a list of Approved Parent Education Classes.
Preparing Your Forms
Divorce forms with detailed instructions are available on the Delaware courts website.
To start, you need to prepare and file a Petition for Divorce (Form 442). The spouse who files the petition is called the “petitioner” - the other is called the “respondent." In the petition, you must include basic information about you, the date of separation, grounds for divorce, and what you want from the divorce, like division of property, alimony, attorney fees, or a name change.
In Delaware, child custody and support matters are not dealt with in the divorce petition. You have to file a separate petition for child custody and support. Information about the child custody and support process is available on the Delaware Courts website.
Along with the petition, you'll need to file an Information Sheet (Form 240), the Vital Statistics Sheet (Form 441), and the Request for Notice (Form 400). The request for notice is where you tell the court how you want your spouse to be "served," (notified) of the divorce petition. If your spouse lives in Delaware and you know the address, you must ask the court to personally serve your spouse, which means that someone will personally deliver the petition to your spouse at home or work.
If you don’t know where your spouse lives, you have to complete an Affidavit that the Party’s Address is Unknown and ask the court to publish a notice of your petition in the newspaper. You’ll have to pay for the publication costs. If your spouse doesn’t live in Delaware, you must ask the court to notify your spouse by certified mail and publish notice of the petition in the newspaper, at your expense.
If you have children under the age of 18 with your spouse, you also must file the Affidavit of Children’s Rights (Form 279). If you and your spouse have entered into a separation agreement, you should file it as well as the Stipulation to Incorporate the Separation Agreement Form (Form 443).
Filing Your Forms
You must file your forms at the family court in the county where either you or your spouse lives. You can file your forms in person at the courthouse, or by mail. You will have to pay a filing fee - these are listed on the Delaware Courts website.
With a no-fault divorce, your case is "trial ready" once you and your spouse have been separated for at least six months, you served your spouse with the petition, and you completed the required parent education class and filed a certificate of completion. “Trial ready” means that you have completed all of the preliminary requirements and can proceed with your divorce. Once your case is trial ready, you’ll receive a court notice.
If you have an uncontested divorce and you asked to proceed without a hearing, solely on the papers submitted, then you will receive a notice telling you that you have 20 days to file the following forms:
- Request to Proceed Without a Hearing (Form 446), and
- Affidavit in Support of the Request to Proceed Without a Hearing (Form 447).
All of your papers will then be forwarded to a commissioner who will decide whether to grant your petition for divorce. If the commissioner grants your divorce, you and your spouse will receive a divorce decree (order) in the mail. If not, the commissioner will deny your petition for failure to meet legal requirements, or schedule a hearing to take testimony and other evidence. If the court schedules a hearing, you and your spouse will receive notice of the time and date.
If you're seeking an uncontested divorce, but requested a hearing, you and your spouse will receive notice of the hearing date and time. You must appear in court on the hearing date, otherwise the court will dismiss your petition and you’ll have to restart the process and pay the filing fee again. At the hearing, the judge will take testimony and other evidence to determine whether to grant the divorce. If the judge grants your petition, you will receive an Order and Decree of Divorce.
If you requested (in your petition) that the court divide marital property or debt, or award alimony or attorney fees, you and your ex will have to jointly complete and file one Rule 16c Financial Report (Form 465), but only after you have received your divorce decree. The financial report requires you and your now ex-spouse to produce financial information to the court and each other.
Both you and your ex must be completely honest about your finances. If you try to hide property, the court can impose the following penalties:
- order you to pay your ex’s attorney fees
- accept your ex’s information on the form as true and ignore your information, or
- enter a default judgment or dismissal against you.
Once the financial report is filed, the court will schedule a hearing and notify you of the date by mail. If you and your ex fail to file the financial report on time, the court will dismiss your request.
To learn more about divorce, child custody and visitation rules, division of property, alimony and more, see our section on Delaware Divorce and Family Laws.
Extensive information about the Delaware divorce process, forms, and instructions, are all available on the Delaware Courts website.