Every state has its own rules and procedures for filing a divorce. Here's what you need to know to get started with your Delaware divorce.
You must meet a state's residency requirements before you can file for divorce in its courts. To get a divorce in Delaware, one of the spouses must have lived in the state continuously for six or more months immediately before filing. (Del. Code tit. 13, § 1504 (2022).)
Divorce petitions must be filed in Delaware family court located in the county where either the filing spouse (the "petitioner") or the responding spouse (the "respondent") lives. (Del. Code tit. 13 § 1507(c) (2022).)
Delaware allows both "no-fault" and "fault-based" divorces. A no-fault divorce is one in which the court doesn't require either spouse to prove that the other's bad acts were the cause of the divorce. In a fault-based divorce, one or both of the spouses must show that the other's actions caused (were "grounds for") the failure of the marriage.
A Delaware court can enter a divorce decree when it finds that a marriage is irretrievably broken and reconciliation is improbable. (Del. Code tit. 13, § 1505 (2022).) There are four ways to show that a marriage is "irretrievably broken": two no-fault ways, and two fault-based ways.
To file a no-fault divorce in Delaware, you must state in your petition that your marriage is irretrievably broken because:
(Del. Code tit. 13, § 1505 (2022).)
"Voluntary separation" occurs when the spouses mutually consent to or acquiesce to a separation. If one spouse disagrees that the separation was mutual, the court can't grant the divorce on this ground.
If you separated on the ground of incompatibility, only one spouse needs to allege that the couple is incompatible.
The required separation period for both these grounds is six months immediately before the ruling on the divorce petition. In other words, you don't have to have been separated for six months before you file—you can file at any time—but the court can't grant the divorce until six months of separation has passed. (Del. Code tit. 13, § 1503 (2022).)
In a fault-based divorce, one or both spouses will have to present evidence to the judge that proves that the other spouse committed acts that meet one of Delaware's fault-based grounds for divorce. To get a fault-based divorce, you must state in your petition that your marriage is irretrievably broken because:
(Del. Code tit. 13, § 1505 (2022).)
If you are alleging that your spouse committed misconduct—behavior such as adultery, desertion, and abuse—there's no required minimum separation period. (Del. Code tit. 13, § 1503 (2022).) If you're alleging a separation based on mental illness, you'll have to demonstrate that the mental illness meets certain requirements.
No-fault divorces are far more common than fault-based ones in Delaware.
Generally, there are two types of divorce—uncontested and contested. An uncontested divorce is one where the spouses agree on all divorce-related matters, such as division of property, child custody, and alimony (spousal support). A contested divorce, on the other hand, is one where the spouse disagree on at least one topic and must ask a court to decide the issues in their divorce.
Uncontested divorces usually reach resolution faster and are less expensive than contested divorces because there's no fighting in court. Instead, the judge needs only to review and approve the spouses' marital settlement agreement and issue a divorce decree.
To begin your Delaware uncontested divorce, you'll need to prepare a "Petition for Divorce." One of the most important items to be aware of in the petition is the date of separation, because this date will ultimately determine when you've met the six-month separation requirement. You'll also advise the court of the relief you're seeking (what you're asking the court for) on topics such as division of property and child custody.
There are several forms you'll need to attach to the divorce petition. These are:
Note that if you have minor children, you'll have to participate in and complete a parent education program.
You can find the forms you need to fill out on the court's website.
Once you've prepared your divorce petition and other documents, you'll have to file them with the court clerk of the county where either you or your spouse lives.
The procedures and paperwork for filing a contested divorce in Delaware are essentially the same as filing an uncontested divorce. Unlike uncontested divorces, all contested divorces will be automatically scheduled for a hearing.
Along with filing the right paperwork, you'll have to pay court filing fees to begin your divorce. The cost as of 2022 to file your divorce in Delaware is $165.
If you can't afford to pay the filing fee, you can request that the court waive the fees. To do this, file an Affidavit in Support of Application to Proceed In Forma Pauperis. If the court grants your application, you won't have to pay any court costs or fees during your divorce.
After you file the paperwork, you will need to provide notice to your spouse of the divorce by "serving" (delivering) copies of everything you filed with the court. When you file the paperwork, the court clerk will prepare a summons, which notifies the other spouse about the divorce. The clerk then sends the summons and petition to the county sheriff for service. (Del. Fam. Court Rules of Civil Proc. 4(c) and (d); Del. Code tit.13, § 1508 (2022).)
If your spouse doesn't respond to the petition within 20 days of being served, the court can enter a "default." This means that the court can grant the relief sought in the petition, without your spouse's participation.
You can avoid having the sheriff serve the summons and petition if your spouse is willing to cooperate with you in obtaining the divorce. Have your spouse complete an "Affidavit of Appearance." By signing and filing this form, your spouse acknowledges receiving a copy of the petition, and agrees to be bound by the Family Court laws governing the divorce.
If you don't know where your spouse is located, you'll have to fill out a form titled "Affidavit That a Party's Address Is Unknown." In the affidavit you'll state that you don't have your spouse's address or phone number, and you don't know anyone who can provide you with that information. There's a similar form if you don't know your spouse's social security number.
When a spouse defaults by not replying to the summons and petition, or answers the petition and agrees to the requested relief, the court considers the divorce to be uncontested.
If you'd like to DIY your divorce, you can get most of Delaware's divorce forms online. You can also ask the court clerk for forms, and it's always a good idea to ask the clerk if there are any locally required forms to file.
If you're working with an attorney, your attorney will assess your situation and fill out, file, and serve all the necessary forms. Many divorcing couples can't afford to hire an attorney to handle their entire case, but would like some assistance with completing and filing their forms. If this describes your situation, consider using an online divorce service or finding an attorney who will consult with you on an as-needed basis. Low-income individuals might qualify for reduced-fee or free legal aid.