Filing For Divorce in Delaware

Filing For Divorce in Delaware

Getting a Divorce in Delaware? Divorce Law Cheat Sheet for the State of Delaware

1. What are the residency requirements for filing for divorce in Delaware?

You or your spouse must have lived in the state or been stationed with the military in the state for at least six months before you file for divorce.

2. Does Delaware have a waiting period?

No, there’s not a waiting period in Delaware. If either you or your spouse argues that your marriage is not irretrievably broken, the court may delay a final ruling to give you time to seek counseling, but even that delay can’t go beyond 60 days.

3. Does the state have grounds for divorce?

The court will grant a divorce if it finds your marriage is irretrievably broken, meaning there’s no hope you’ll get back together. Delaware will consider your marriage irretrievably broken if one of the following is true:

  • You and your spouse have voluntarily separated.
  • You and your spouse have separated because of your spouse’s misconduct.
  • You and your spouse have separated because of your spouse’s mental illness.
  • You and your spouse have separated because you are incompatible.

The court will consider you to be separated as long as you and your spouse have not occupied the same bedroom or had sex with each other in the 30 days before the court hears your petition for divorce.

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4. How does Delaware determine the division of property?

You and your spouse are encouraged to come up with a settlement on your own and present it to the court. If you can’t agree, the court will divide your property for you. The court will divide your marital property however it decides is most equitable, or fair. To determine what that is, the court will consider:

  • How long you were married.
  • Whether you or your spouse was previously married.
  • You and your spouse’s ages, health, amount and sources of income, skills, employability, debts and needs.
  • Whether property is being awarded instead of or in addition to alimony.
  • You and your spouse’s opportunities for future income.
  • How you and your spouse helped or hurt your chances to acquire marital property, including whether one of you contributed as a homemaker or spouse.
  • The value of you and your spouse’s individual property.
  • You and your spouse’s economic circumstances, including whether one of you should be awarded your home so you can live there with your children.
  • Whether any property was acquired as a gift (except gifts that are considered non-marital property —” see below.)
  • You and your spouse’s debts any tax situation that might arise as a result of giving property to you or your spouse.

Delaware considers everything marital property except:

  • Property that you acquired before you were married.
  • Property that you acquired by gift or inheritance —” unless it was a gift between you and your spouse. Then it becomes marital property.
  • Property that you acquired before you were married.
  • Property that you and your spouse agree to leave out of the discussion.
  • Any increase in the value of property that you acquired before you were married.

5. Does Delaware require mediation before a divorce is granted?

The first time you and your spouse seek to set up a child support order with the court, you’ll have to attend a mediation conference. A Family Court mediator will use the Delaware Child Support Formula to calculate your support amount and help you come to some agreement. If you can’t agree on support, then the court will schedule a hearing.

6. How does the state determine child custody?

Legal custody and physical custody are two different things. Legal custody outlines how involved each parent is in the major decisions of a child’s life — where a child goes to school, what faith he or she is raised in and other biggies.

Physical custody addresses where a child will live and with whom. Visitation is then negotiated based your physical custody arrangement.

The court will order whatever legal and physical custody it decides is in the best interest of your child. It seeks an arrangement that offers your child a frequent and ongoing relationship with both you and your spouse —” as long as that is in your child’s best interest. To determine just what that is, the court will consider:

  • You and your spouse’s wishes.
  • Your child’s wishes.
  • Your child’s relationship with both of you and his or her grandparents, siblings, others in your households and anyone else who affects your child’s best interest.
  • Your child’s adjustment to his or her home, school and community.
  • The mental and physical health of everyone involved.
  • You and your spouse’s past and current actions concerning your responsibilities to your child.
  • Any evidence of domestic violence.
  • The criminal history of you, your spouse and anyone else in your households.

You and your spouse will have to take a parenting education course (unless the court decides for some reason that it’s unnecessary). That course has to include at least four hours of instruction covering the stages of child development, how children adjust to their parents’ separation, conflict management skills, visitation guidelines, how to reduce stress in children and how to parent cooperatively.

7. How does the state calculate child support?

Delaware child support guidelines use a percentage of income formula that calculates support as a percentage of the income of the non-custodial parent. This method simply applies a percentage based on the number of children requiring support.

The court also will take into account these factors when considering a child support award:

  • Your child’s financial resources.
  • Your child’s standard of living before your divorce.
  • You and your spouse’s ages and health.
  • You and your spouse’s earning capacities.
  • Your child’s age and health.
  • Your child’s needs.

The final figure also takes into account child care expenses and adjustments for parenting time.

8. How does the state determine and calculate alimony?

Alimony is not a given in a divorce case. The court will only award alimony if it determines that you:

  • Depend on your spouse for support.
  • Don’t have enough property, including marital property, to meet your reasonable needs.
  • Can’t support yourself with a job.
  • Are caring for a child whose condition or circumstances make taking a job inappropriate.

If the court decides alimony should be awarded, it will consider these factors to determine how much:

  • Your financial resources, including marital and non-marital property, as well as your ability to meet all or part of your needs on your own.
  • How long it would take and how much it would cost for you to get the education or training necessary to get a job.
  • Your standard of living during your marriage.
  • How long you were married.
  • You and your spouse’s ages and physical and emotional conditions.
  • Any contributions you or your spouse made to the other’s education or career.
  • Your spouse’s ability to meet his or her own needs while paying alimony.
  • Any tax situation that might arise from an alimony award.
  • Whether you or your spouse had to postpone or give up education or employment opportunities while you were married.
  • Any other factor the court decides is relevant.

Delaware says that anyone receiving alimony has an obligation to seek training or try to find a job unless that’s unfair because of a severe mental or physical illness or disability, because of his or her age, or because he or she is caring for a child whose needs make that unfair.

Alimony is not affected by any misconduct during your marriage. Alimony ends when the person who is receiving it moves in with a significant other or remarries.

9. Is there a waiting period before remarriage in Delaware?

No, you are free to remarry after the court delivers the final judgment ending your marriage.

FOR MORE INFORMATION

The Delaware state statutes are online here.

Delaware provides a basic child support calculator online here.

The state also has posted a packet of divorce forms online here.

Please note: Local and state laws change constantly, therefore this information is for educational purposes only. We do our best to keep state-specific information up-to-date, but please contact us to discuss your unique situation.

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