Grounds for Divorce in Delaware

Learn more about Delaware's no-fault divorce process.

By , Attorney

Delaware Is a No-Fault Divorce State

Divorce can be one of the most emotional and difficult legal processes. Over the past 50 years, every state has introduced laws to make the divorce process easier to navigate and less like the courtroom dramas we see on television. "No-fault" divorce law is the newest trend, and it simply means that neither spouse must prove that the other is responsible for the breakdown of the marriage.

Every state has adopted some form of no-fault divorce law, and although the specific requirements for each state may vary, the general idea is that if a spouse wants to end the marriage, the court only needs to know that your marriage is over, and there's no chance you and your spouse will reconcile. But, before a court can grant a divorce, it needs a legally acceptable reason—or, grounds.

In Delaware, parties must state to the court that the marriage is irretrievably broken and that reconciliation isn't probable. Alternatively, you can show the court that you and your spouse voluntarily separated for a minimum of 6 months.

The most common method of divorce is a voluntary separation because it doesn't require either spouse to air their dirty laundry in a public forum, like a courtroom. The only additional requirement is that the separation is voluntary, which means that both spouses must agree that the separation happened mutually. If either spouse disagrees, you can't file for divorce using this reason.

What constitutes a "6-month" separation?

Contrary to popular belief, in Delaware you and your spouse don't need to be living apart for 6-months before you can start the divorce process. You can file for divorce at any time after the separation, but the court will not issue a final judgment of divorce until at least 6 months from the date you file.

Separation means that you're not sharing a bed with your spouse, but it doesn't mean that you and your spouse must live in different homes. In Delaware, courts understand that paying mortgage or rent on two homes is quite difficult, so if you can prove that you've "separated" within the same home, the clock on the waiting period will start ticking. Keep in mind, although spending the night with your spouse during the separation period won't restart the clock, you must be separated (no sexual relations) for the 30-days immediately before the court issues a final judgment of divorce.

What If My Spouse's Misconduct Caused the Marriage to Fail?

Although Delaware doesn't offer a traditional "fault divorce"—which allows a spouse to use fault in other areas of the divorce, like property division and alimony—it does allow spouses to file for a no-fault divorce based on marital misconduct. Alleging marital misconduct in your no-fault divorce doesn't require a separation period, which can be helpful if you'd like to finish the legal process sooner rather than later.

Marital misconduct must be so severe that it proves to the court that there's no chance you and your spouse can reconcile. Some acceptable types of misconduct include:

  • adultery
  • mental, physical, or emotional abuse
  • alcohol or drug abuse
  • imprisonment, and
  • abandonment.

It's typically faster and easier to file for divorce based on separation. If you request a divorce using fault, you'll need to prove to a judge that the misconduct happened and how the misconduct caused your relationship to fail. It's essential that you only file for divorce using allegations that you can prove with evidence. If you can't convince the court, it's possible the judge will dismiss (deny) your request for a divorce, and you'll need to start over.

Does Delaware Recognize Uncontested Divorce?

Yes. Most divorces are uncontested, which means that couples generally agree on all the major divorce-related legal issues before asking a court for help. This typically means that couples have already reached agreements on property division, custody, child support, and spousal support.

If either spouse objects to any part of their divorce settlement agreement before the judge signs the final document, that spouse can ask the judge to convert it to a contested divorce. If this happens, the judge will decide any matters that the spouses can't resolve.

If you agree on all terms, you can present your divorce settlement agreement to the court for approval. Uncontested divorce usually requires less time in court and lower legal costs and fees.

What About an Annulment?

Divorce and annulment are similar in that they both determine a marital status. But, divorce ends a valid and legal marriage, whereas an annulment declares a "marriage" as void and therefore, renders it nonexistent.

There is a common misconception that annulment is a simple way to get out of a marriage. On the contrary, an annulment is rare because the requirements for it are difficult to prove. If you can demonstrate any of the following to the court, a judge may grant an annulment:

  • one spouse was mentally ill and unable to consent to the marriage
  • one spouse was impotent and hid it from the other before the marriage
  • either spouse was underage and didn't have parental consent before the marriage
  • either spouse committed an act of fraud, duress, or misrepresentation in order to induce the other into the marriage
  • either spouse was already married at the time of the wedding (bigamy), or
  • spouses are too closely related, which is prohibited in Delaware.

Once the court approves your request for an annulment, a judge will sign the final orders to declare that your marriage never existed.

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