Legal Separation in Delaware FAQs

In Delaware, couples must separate before filing for divorce. If you can't meet this requirement, you may need to wait before asking the court for help. Continue reading to learn more.

By , Attorney · Cooley Law School
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Is There a Difference Between Divorce and Legal Separation?

Delaware does not recognize legal separation as a process to terminate a relationship. However, in the states that do, the difference between divorce and legal separation is that divorce permanently terminates your marriage, while couples who pursue a legal separation remain legally married, but are free to live a life independent of each other.

Both legal procedures allow couples to create a final resolution to important legal questions, like child custody and visitation, child support, and property division.

What Does Separation Have to do with Divorce?

The divorce process begins when one spouse files a motion (request) for divorce with the court. In this application, you must include the date of your marriage, the date of your separation, and a statement that at least one spouse has lived in the state for a minimum of six months before filing.

In addition to the above requirements, you must provide the court with a legally acceptable reason—or, grounds—for your request. In Delaware, the only ground for divorce is that your marriage is irretrievably broken, meaning neither spouse can repair the relationship, and there's no chance for reconciliation.

You can demonstrate irretrievable breakdown by proving to the court that you and your spouse agreed to separate, or (if you don't agree) that you separated due to a spouse's misconduct or mental illness.

What Does Separation Mean in Delaware?

In the context of proving irretrievable breakdown in Delaware, a separation means that you and your spouse have lived separately and apart for a minimum of six months before filing for divorce. The court allows a couple to live in the same home during the six months, as long as you don't share a bedroom or have a sexual relationship with each other.

Why Is It Important to Follow the Rules About Separation?

The court expects you to be truthful in every communication to the judge, whether in writing or in person. If you misrepresent your marital status or living situation to speed up your divorce, the judge can (and will) deny your application and require you to restart the clock on the six-month separation requirement.

In Delaware, the Date of Separation Is Important

When you apply for a divorce, one of the most critical pieces of information for the court is the date that you and your spouse separated. When you enter this date on your application, you are telling the court that your marriage and your joint ownership of marital property, are over.

Delaware courts use a process called equitable distribution to divide property and debt during a divorce, meaning the judge will split marital property and obligations fairly (but not always equally) between the spouses. However, the court won't divide separate property, which may include what you owned before the marriage or anything you acquired after you and your spouse separate.

For example, if your spouse went on a dream vacation shortly after moving out of the family home, it's probably true that you don't want to pay for the trip. If you can demonstrate that the vacation happened after your separation date, it's likely that the judge will require your spouse to cover 100% of the expenses. However, if your separation date isn't definite, you could be on the hook for a vacation you didn't get to enjoy.

What Is a Trial Separation?

Although legal separation isn't an option in Delaware, couples who aren't confident about divorce can participate in a trial separation, which is where the spouses live independently to try and reassess the marriage. Typically, you can verbally negotiate the terms of the separation, which may include an expiration date, custody and visitation plans, and financial arrangements.

Delaware law requires a six-month waiting period between the time you file for divorce and when the judge can grant your request. A trial separation during the waiting period may be the best way to decide if divorce is right for you. However, most couples try separation before asking the court for intervention. At the end of your trial, you can either reconcile or file for divorce.

What Is a Separation Agreement?

A separation agreement is a legally binding document signed by each spouse and the judge. The purpose of the contract is to resolve complicated legal matters that typically arise during a divorce. Most couples can negotiate the agreement without court intervention, but if either spouse objects to the terms of the arrangement, the judge can decide the issues for you.

Separation agreements are useful for couples involved in a trial separation, or for those who wish to keep the most control over their divorce case. If you create an agreement during a trial separation, the judge may incorporate it into your final judgment of divorce.

The legal issues you should address in your agreement include:

  • child custody and visitation
  • child support
  • how you will handle future disputes regarding custody or support matters
  • allocation of marital property and debts, and
  • spousal support.

Should I Hire an Attorney?

Divorce is an emotional and complicated process, and the rules are continually changing, which makes it difficult to follow if you're new to the legal process. It's always a good idea to speak with an experienced family law attorney who is familiar with your state laws before you file.

Every case varies depending on the facts, and a qualified attorney may be able to provide you with additional information to protect your interests in a divorce.

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