When divorcing couples agree on the terms of their divorce – child custody and visitation, property division, child support and alimony – many states will allow them to get an uncontested divorce, saving them considerable time and money.
This article will explain the process for getting an uncontested divorce in Delaware. If you have additional questions after reading this article, you should consult a Delaware family law attorney for advice.
Delaware allows for a married couple to get an uncontested divorce whenever the spouses have no disputes over the terms of their divorce. If one spouse files a complaint for divorce, and the other spouse doesn’t file an answer to the complaint, the court treats it the same as if the spouses are in agreement.
If you are seeking an uncontested divorce in Delaware, you’ll need to file a petition for divorce like you would in a contested divorce, but state in the petition that the divorce is uncontested. Either you or your spouse needs to have lived in Delaware for at least six months prior to filing for divorce.
Even though the divorce will be uncontested if your spouse doesn’t answer, it’s better if the two of you sign a written settlement agreement detailing how you want your property and debts divided and what your arrangement will be for custody and visitation for your children. Your settlement agreement should also account for any child support and alimony to be paid from one spouse to the other.
To get an uncontested divorce in Delaware, you need to file a Petition for Divorce in your local family court: New Castle, Kent or Sussex County. A petition for divorce, whether it is uncontested or contested, must provide certain information:
If you have children, you’ll also need to file an “Affidavit of Children’s Rights,” which basically states that you understand your children's rights, such as being supported by both parents financially and emotionally. If you and your spouse have signed a settlement agreement, you’ll need to file a “Stipulation to Incorporate Separation Agreement” with your complaint, signed by both you and your spouse. You can find the forms you’ll need to file here.
Once you’ve filed your petition and other divorce documents, the court will issue a summons that needs to be served on your spouse.
The family court clerk’s office may be able to tell you what options you have to serve your spouse, including your spouse agreeing to accept service or having the petition delivered to your spouse. But remember that the court clerk's can't provide legal advice, so if you have very specific questions about your case, you'll need to contact a local attorney for help.
If you don’t know where your spouse is, you’ll need to file an “Affidavit of Unknown Address,” which can be foundhere.
If you are getting an uncontested divorce in Delaware, you can do so without having to ever appear in court for a hearing if you have already signed a settlement agreement. You’ll need to file a “Request to Proceed Without Hearing,” and “Affidavit in Support of Request to Proceed Without Hearing,” both found here. You can file these documents at the same time you file your petition for divorce, or any time at least seven days before the scheduled hearing.
If you don’t ask the court to proceed without a hearing, you’ll attend a hearing where the court can finalize your divorce. The court will schedule the hearing after your spouse has been served. You will testify at the hearing about how you would like the court to handle property division, child custody and visitation, alimony, and any other issues you would like the court to address. Your spouse will not have to testify at the hearing.
Once the court is satisfied you have met all of the requirements for your uncontested divorce, the court will issue a decree of divorce, which means that you are officially divorced. The decree of divorce will include either your settlement agreement, or the terms of the divorce as determined at the hearing.
If you have additional questions about uncontested divorce in Delaware, contact a local family law attorney.
To read the full text of the law on divorce in Delaware, read the Delaware Code Annotated Title 13, Chapter 15 and the Delaware Family Court Rules of Civil Procedure, Rules 101 and 104.