The Delaware Family Courts will consider a divorce to be uncontested if the spouses are in agreement on the issues. But, just like a contested divorce, you still have to meet certain requirements before you qualify to have your marriage dissolved.
As with all states, Delaware has a residency requirement. Either the “petitioner” (the spouse starting the divorce) or the “respondent” (the other spouse) needs to have resided in the state for at least six months immediately prior to starting the divorce proceedings. This six-month period also applies to members of the military who are stationed in Delaware. (13 Delaware Code §1504.)
You’ll also need “grounds” (reasons) for divorce. Under Delaware law, the court can enter a divorce decree if it finds that the marriage is irretrievably broken and that reconciliation is improbable. (13 Delaware Code §1505.)
In order for the court to find that a marriage is irretrievably broken, the spouses have to be separated. There are four separation scenarios, any one of which will qualify:
(13 Delaware Code §1503 provides complete definitions of the various types of separation.)
The court won’t issue a divorce decree until you and your spouse have been separated for a least six months. However, if the divorce is based on misconduct, the law waives the six-month separation requirement. Note that you and your spouse can live in the same premises and still be considered separated. But you’ll have to maintain separate bedrooms and not have sexual relations with each other during that time.
If you’re seeking an uncontested divorce, Delaware—as with all states—has a particular process you’ll need to follow. Fortunately, the Delaware Courts website provides information and forms that can help you if you’re representing yourself.
To get an uncontested divorce in Delaware, you need to prepare a “Petition for Divorce.” In it, you’ll provide the court with information needed to proceed with your case. 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). This normally encompasses topics such as custody, visitation, child support, alimony, and division of marital property.
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 these forms (other than your marriage certificate, obviously) on the court’s website.
Once you’ve prepared your divorce petition and other documents, you’ll have to file them. You do that by delivering them to the court clerk of the county where either you or your spouse lives.
Be aware that when you’re calculating the cost of divorce, Delaware charges filing fees. If you can’t afford to pay these fees, you can ask the court to waive them. You’ll have to fill out and file yet another form, called an “Affidavit in Support of Application to Proceed in Forma Pauperis.” This form is also available on the court’s website.
Once you’ve prepared and filed your divorce papers, they have to be “served on” (delivered to) your spouse.
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. (Delaware Family Court Rules of Civil Procedure – Rule 4 (c) and (d) and 13 Delaware Code §1508.)
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. You’d do this by having the spouse complete a form known as an “Affidavit of Appearance”. By signing and filing this form, the spouse acknowledges receiving a copy of the petition, and agrees to be bound by the Family Court laws governing the divorce.
You may find yourself in a situation where you don’t have current location information for your spouse. If so, you’ll have to fill out a form titled “Affidavit That A Party’s Address Is Unknown.” In that 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.
If 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.
When you’ve met the requirements for going forward, the court will send you a “Notice of Trial-Readiness.” (Delaware Family Court Rules of Civil Procedure – Rule 104.1 (d) and (e).)
Delaware’s law is a bit unusual in that, if your divorce is uncontested, it gives you a choice as to whether or not you want a court hearing to finalize the process. You’ll notify the court of your choice within 20 days of the date of the Notice of Trial-Readiness.
If you don’t want a hearing, the court will make its decision on granting the divorce “on the papers”. This means the court will look at everything that’s been submitted, and decide whether to approve the divorce based solely on those documents. You’ll let the court know this is how you want to proceed by filing a “Request to Proceed Without Hearing,” and an “Affidavit in Support of Request to Proceed Without Hearing.”
If you’d rather be present when the court is making its decision, you can opt for a hearing. This might be something you’d choose to do if you want to be available to answer any questions the hearing officer might have about what you submitted. If you ask for a hearing, you’re obligated to attend. Your spouse has the option of being there. Even if you’ve opted for a hearing, you can change your mind and file the affidavit to proceed without a hearing, but you must do that prior to seven days before the hearing date.
Note that if you’ve chosen to proceed “on the papers,” but the court finds an issue with what you’ve submitted, the court can deny the divorce. In the alternative, it may notify you that a hearing will be necessary.
If you do attend a hearing, dress appropriately and try to get to court early, to familiarize yourself with the surroundings. The hearing officer will likely ask you some questions about the relief you’re seeking. As a rule, uncontested divorce hearings are fairly short. Once the court is satisfied you’ve met all the requirements for your uncontested divorce, it will issue a decree of divorce.
If you and your spouse have resolved all your issues, it would be in your mutual best interest to memorialize the terms in a divorce settlement agreement (sometimes referred to as a “property settlement agreement” or a “marital settlement agreement”). This agreement is a written contract between you and your spouse, and is binding on both of you if it’s been properly executed. Spouses often enlist the services of attorneys or a qualified mediator in negotiating the terms of their agreement. Having a well-constructed settlement agreement up-front (preferably before you file for divorce) will likely save you time, money, and anxiety down the road.
You can incorporate your written agreement into the divorce decree by filing a “Stipulation to Incorporate Separation Agreement,” which you can find on the court’s website. By doing this, the court will be in a position to enforce your agreement if there’s a violation of any of its terms in the future.
A word of caution: if you and your spouse prepared the settlement agreement on your own, it’s important for each of you to have separate attorneys review the agreement with you to make sure you understand the implications of the terms, and to confirm that the agreement meets all legal requirements.