How to Divorce in Delaware

Qualifying to get Divorced in Delaware

Meet the residency requirement. To file for divorce in Delaware, either spouse must live in the state or be stationed in the state as a member of the military for at least 6 months before the filing of the petition. Only one spouse must meet the residency requirement in order to get divorced in Delaware. Therefore, if you or your current spouse is a resident of Delaware and has been for the past six months, you may file for divorce in Delaware. If neither you or your spouse has lived in Delaware for at least 6 months, you will have to get divorced elsewhere, or wait to file until one of you meets the 6 month residency requirement.

Have a valid reason to divorce. In Delaware, the court will enter a divorce if the parties’ marriage is “irretrievably broken” and reconciliation between the parties is unlikely. You can show that you and your spouse will not reconcile due to one of the following reasons: You and your spouse are voluntarily living apart. You and your spouse are separated due to your spouse’s “marital misconduct.” You and your spouse are separated due to your spouse’s mental illness. You and your spouse separated because the two of you are incompatible.

Find out where to file. You must file a petition for divorce in the county where you or your spouse lives. This county is where your divorce hearings will take place, and where you will turn in all of your paperwork.

Considering the Issues Present in a Divorce

Determine how your property may be divided. Delaware courts will “equitably distribute” property when a couple divorces. “Equitable distribution” means that the court can distribute all property that either spouse or both spouses have, regardless of whose name it is in and when the property was acquired. When determining how to divide the property, the court, without regard to marital misconduct, will consider the following: The length of the marriage. Any prior marriages of the parties. The age, health, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties. Whether the property award is in lieu of or in addition to alimony. The opportunity of each spouse for future acquisitions of capital assets and income. Each spouse's contribution to or dissipation of the marital estate, including the contribution of a party as homemaker. The value of the property owned by the parties. The economic circumstances of each spouse at the time of the division, including the desirability of awarding the family home to the party who will have custody of any children.

Talk to your spouse about child support and custody, if you have children. If you and your spouse have children, the court will come up with a custody and child support arrangement that is in the “best interests of the child.” This could mean that you and your spouse will share custody, or the court could award one party full custody. The court will not give any preference to the mother when awarding custody. To determine what custody arrangement is in the best interests of the child, the court will consider the following factors: The wishes of you and your spouse regarding where your child or children will live. The wishes of your child. The child’s relationship with his or her parents, grandparents, siblings, or any other residents of the household or persons who may significantly affect the child's best interests. The child's attachment to his or her home, school and community. The mental and physical health of the parents and child. Past and present compliance by both parents with their rights and responsibilities to their child. Evidence of domestic violence against the child or against either parent. The criminal history of either parent, and of any person living with one of the parents.

Consider whether you or your spouse will be asking for spousal support. A party may request alimony for a length of time that is up to 50% of the length of the marriage, unless the parties have been married for 20 years or longer, in which case there is no limit to the amount of time that a spouse can receive alimony. Delaware only allows an award of spousal support (alimony) to a party that is “dependent” on the other spouse. To qualify, the asking spouse must show that he or she is “dependent” because he or she: Lacks sufficient property, including any award of marital property made by the Court, to provide for his or her reasonable needs. Is unable to support himself or herself through appropriate employment or is the custodian of a child whose condition or circumstances make it impossible or extremely difficult to work. Is dependent on the other party for support, and will not be provided for by anyone else.

Finding an Attorney

Determine whether you need an attorney. While having an attorney to advocate on your behalf may insure that the divorce process goes smoothly, you may be able to complete the divorce without a lawyer. If you and your spouse agree on how to divide your property, and if you there are no children involved, you can probably file for divorce on your own and save money. If you do not have an attorney, you and your spouse will be responsible for filing all of your paperwork, and will each talk to the judge without getting any help preparing. If you and your spouse do not agree on how to separate your property, or if you have children and need to come up with a custody arrangement, you should hire an attorney to assist you. A “contested” divorce where the parties do not agree can be extremely complicated, and you should have an expert to help you get the best possible outcome.

Research local attorneys. If you decide to hire an attorney, you should research possible candidates to find one that is right for you. To begin the process, considering doing the following: Get a referral from a friend or family member who has used a divorce lawyer before. Find out who they hired and if they would recommend the attorney. If you can’t get a referral from anyone you know, check online websites like Find Law, Avvo, and Yahoo Local to find a qualified attorney. Once you have a list of attorneys that you think may be a good fit, set up “consultation” meetings so you can meet face to face. During the meeting, you can ask questions about your case and situation, and gauge whether you get along with the attorney.

Choose the right attorney for your situation. After meeting with potential attorneys, decide which one is the best for your particular situation. You should consider the amount of experience the attorney has, the price he or she will charge, and how well you got along with the attorney. If, after meeting with an attorney, you think of other questions you would like to ask, don’t hesitate to call back and ask. You should make an informed decision, and the attorney that you are considering should not have any problem answering any and all questions that you may have. If you cannot afford an attorney, you can try to obtain legal help on a “pro bono” (free) basis. To get help finding an attorney, call 302-478-8850 if you live in New Castle County and 1-888-225-0582 if you live in Kent or Sussex County.

Preparing and Filing Your Divorce Petition

Draft your petition for divorce. To begin the divorce process, will need to fill out a “petition” to divorce. The petition tells the court why you want to get divorced, and provides the court with your information and your spouse’s information. The petition can be found by clicking here. To fill out the petition, you must include the following information: Your name and address (put in the “petitioner” spot if you are filing for divorce). Your spouse’s name and address (put in the “respondent” spot). Both your date of birth and your spouse’s. Both your occupation and your spouse’s. The names of any children of the marriage. The date that you and your spouse separated. Details regarding your spouse’s “marital misconduct,” if that is the applicable reason for the divorce. Details regarding your spouse’s “mental illness,” if that is the applicable reason for the divorce. Whether you want an “uncontested divorce,” or a “contested divorce.” Choose “uncontested” if you and your spouse agree on the issues, and “contested” if you do not.

Sign the divorce petition in the presence of a notary public. The petition must be signed in the presence of a notary public. Do not sign it until you are in the presence of a notary, or you will have to complete the petition again.

Complete the required paperwork. In addition to the petition, you must complete an “information sheet” and a “vital statistics form” in order to begin the divorce process. Additionally, if you have children with your spouse, you may have to fill out additional forms. Information Sheet: This form provides the Court with general information about the parties which allows the Court to adequately notify the parties about upcoming proceedings. Vital Statistics Form: This form will contain similar information to what was included on the Information Sheet. However, the information on this sheet is provided directly to the Division of Public Health and Vital Statistics for their records. This form must be filled out in black ink or typed.

Give your spouse “notice” of the action. In order to give your spouse “notice” of your divorce, you will fill out a Request for Notice form. On this form you will tell the Court how you want to notify your spouse about the divorce action. If your spouse lives in Delaware and you know his or her address, you must ask the Court to personally serve him or her with a copy of the petition. This means that someone will deliver the petition to your spouse. If you do not know where your spouse lives, you must ask the Court to publish a notice of the petition in the newspaper at your expense. You must also complete an Affidavit that a Party’s Address is Unknown.

File your paperwork. Take all of the paperwork that you have filled out (the Petition, the Information Sheet, the Vital Statistics form and the Request for Notice) to the courthouse in the county where you or your spouse resides. Be prepared to pay a filing fee at the time you file. To find out what the filing fee is, you can look at the Family Court website or go to the Family Court Resource Centers located in each courthouse. In Kent and Sussex Counties you may file your papers at the Resource Centers on the first floor of the Family Court Building. In New Castle County, you may file your papers at the Resource Center on Lower Level 1 (LL1) of the New Castle County Courthouse.

Wait for your spouse to respond. Your spouse has 20 days from the date of service (the date that he or she receives your petition) to respond to your Petition for Divorce. Your spouse may file an answer to your petition where your spouse may admit or deny any of the statements that you made in your petition. On the answer, your spouse may also “counterclaim” for divorce. A counterclaim means that your spouse is filing his/her own petition for divorce, and can ask the court for a different distribution of property or child custody arrangement than the one you asked for. The “answer” uses the same for as the “petition” and can be found by clicking here.

Wait until your petition is “trial ready.” You cannot proceed with the divorce process until your Petition for Divorce becomes “trial ready.” Your petition is trial ready when the following requirements have been met: You and your spouse have been separated for at least 6 months, unless you are filing on the grounds of misconduct, then you do not have to be separated for any specified period of time. However, be aware that you must prove any allegations of misconduct by presenting evidence of the misconduct to the Court before a divorce will be granted on this ground. Your spouse was served with the Petition for Divorce and either responded within 20 days or did not respond. You have completed the required Parent Education Classes and filed the Certificate of Completion with the Court if you and your spouse have children. You and your spouse have not lived together for the 30 days preceding the divorce action and have not had sexual relations during that time. Once your petition for Divorce is trial-ready, you will receive a Notice from the Court telling you that your petition is trial-ready and that you can proceed with the divorce process.

Finalizing Your Divorce

Get your divorce finalized without going to a hearing. If your petition is uncontested and you marked on the petition that you wanted the Court to proceed without a hearing, you can be granted a divorce without attending a hearing. If you chose not to have a hearing, you will receive a “Notice of Trial-Readiness” telling you that your petition is trial-ready and that you have 20 days to file the following forms: Request to Proceed Without a Hearing: Within 20 days of the date on which you receive your “Notice of Trial Readiness,” you should file this form with an attached copy of your Notice and mail one copy to your spouse. If you fail to file this request within the allotted time, you will have to appear in court to obtain your divorce. Affidavit in Support of the Request to Proceed Without a Hearing: This document must be filed along with your “Request to Proceed Without a Hearing.” On this document you are swearing that the information contained in your divorce petition is true. The Court will rely on this information when making a determination regarding your divorce, so it is extremely important to be honest. If the court grants your request to proceed without a hearing, your divorce will be completed. If not, a hearing will be scheduled for you.

Appear at your divorce hearing. If the petition was uncontested and you marked on your petition that you wanted to proceed with a hearing or if your spouse contested the divorce petition, you will receive a “Notice of Hearing” notifying you of the date of your hearing. You must come to Court on the day of your hearing for your divorce to be granted. If you fail to appear at the hearing, the Court may dismiss your petition and you will have to start the process over and pay the filing fee again. Make sure you are on time to your hearing, judges often hear more than one divorce at a time, so you do not want to hold everyone up. If the judge asks you any questions, address him or her as “your honor” and make sure to be polite and respectful.

Comply with the terms of your divorce. Whether your divorce is decided at a hearing or by agreement, you must comply with the "terms" that are included in your divorce order. The divorce order is the "law" of your divorce, so failing to follow the instructions in the final order could result in legal consequences, such as paying a fine or, in some cases, going to jail. If there is something in your divorce order that you want or need to change, contact the clerk's office at the court where you were granted your divorce, and ask about "modification." If your former spouse is not complying with the terms of your divorce agreement, contact an attorney to determine your options for making him or her comply.