When a couple divorces, they are forced to face not only the painful loss of a meaningful and intimate bond, but also the prospect of dividing up all their assets and liabilities. Until they divorce, married couples are frequently unaware of how closely entangled their finances really are. The process of divorce awakens them to the shocking reality that most of their worldly possessions are commingled.
The reality is that most couples will not enjoy the same level of financial comfort after a divorce. Alimony (which is sometimes referred to as “spousal maintenance” or “spousal support” in other states) is an attempt to level the playing field. It consists of the money that one spouse (the paying spouse or the "obligor") pays to the other (the supported spouse or the "obligee") to ensure that neither spouse becomes destitute because of a divorce.
The family court can order alimony to be paid before or after the divorce is final. “Interim alimony” (meaning, alimony that’s only paid temporarily, during the divorce proceedings) can be required before a court issues a final divorce judgment. Later, when a family court issues a permanent, final order, it will decide whether the alimony should continue.
Regardless of whether alimony is temporary or ongoing, a judge can only issue an alimony award if all of the following are true:
Get more detailed information how the amount of alimony is determined, see Understanding and Calculating Alimony in Delaware.
Some states will consider either spouse's marital misconduct when deciding whether to grant a divorce. These states allow “fault-based” divorce. Marital misconduct can include “grounds” (legal justifications for divorce) like fraud or abandonment, but one of the most common fault grounds is adultery. Adultery is generally defined as occurring when a legally married person enters into a sexual relationship with someone other than the person’s spouse.
However, many other states have shifted to a “no-fault” model. “No-fault” means that the court isn’t interested in the reasons the marriage fell apart. All that has to be shown to the court’s satisfaction is that the marriage has broken down so badly that it can’t be repaired.
Delaware is a no-fault state, and a divorce will be granted if it is “irretrievably broken” and “reconciliation is improbable.” Adultery may the reason you choose to end your marriage, but the court will not consider evidence that your spouse was cheating for purposes of deciding whether to grant the divorce.
No. Judges are explicitly forbidden from considering adultery, or any other kind of marital misconduct, when deciding whether to award alimony or calculating the amount and duration of it. Judges in Delaware have to make these decisions “without regard to marital misconduct,” so there is no wiggle room to consider wrongdoing. Alimony orders must be “just,” which means they have to be fair and reasonable. To make these decisions, courts have to consider these factors:
Although the courts can't consider marital misconduct when fashioning alimony decisions, lawmakers have made an effort to be fundamentally fair to both spouses by striking a balance between the obligor's ability to pay and the supported spouse's need for assistance:
If you have questions about alimony and adultery in Delaware, please contact an experienced family law attorney for help.
For self-help purposes, you can look at the Delaware Judiciary's State Courts Citizen Help page and official family court forms. You can also review the legal assistance page to learn about free or low-cost legal representation.