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Conozca la Ley: Delaware

ACTUALIZADA 7 de septiembre, 2013

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General information about divorce in Delaware.

Basic info

arribaWhat are the grounds to file for divorce in Delaware?

In Delaware, the only ground (reason) that you can use to file for a divorce is that the marriage is “irretrievably broken,”* which basically means that the marriage has permanently broken down and cannot be fixed.*  You can prove that the marriage is irretrievably broken by showing one of the following:

  1. Voluntary separation.  Voluntary separation means that you and your spouse are living separately and that you both agreed (consented) to the separation.*1
  2. Separation caused by your spouse’s misconduct.  This means that there is misconduct (bad behavior) committed by your spouse that is so destructive to your marriage that you cannot reasonably be expected to continue being married to him/her.  Misconduct includes, but is not limited to, adultery, bigamy, conviction of a crime where your spouse is in prison for one or more years, repeated physical or verbal abuse against you or your children, desertion (abandonment), homosexuality, willful refusal to perform marriage obligations, getting a sexually transmitted disease, habitual drunkenness or drug use.*2
  3. Separation caused by your spouse’s mental illness or
  4. Separation caused by incompatibility, which basically means that you both really can’t get along but it’s not either person’s fault.*3
The word “separation” used in the divorce grounds explained above means that you and your spouse must be living separate and apart for 6 or more months before the judge will grant a divorce – this does not apply for a divorce based on your spouse’s misconduct; there is no 6-month requirement for that ground.  However, you may file for divorce at any time after you have separated from your spouse.  The requirement that you live separate and apart for 6 months affects only the time at which a judge may hear and grant your divorce.  It does not mean you must be separated for 6 months before you can file.*4

Note: You can still be considered “separated” and “living separate and apart” if you live in the same house together as long as you occupy separate bedrooms and do not have sexual relations with each other.*5  If you and your spouse attempt to reconcile (get back together) before you are divorced, even if you temporarily sleep in the same bedroom and have sexual relations, it will not interrupt or eliminate the time counted towards the 6-month requirement of living separate and apart as long as you have not slept in the same bedroom or had sexual relations with each other for 30 days immediately before the court hears the petition for divorce.*6

* 13 Del.C. § 1502(3)
*1 13 Del.C. §§ 1505, 1503(8)
*2 13 Del.C. §§ 1505, 1503(5)
*3 13 Del.C. § 1505(b)(3), (4)
*4 13 Del.C. § 1507(e)
*5 13 Del.C. § 1503(7)
*6 13 Del.C. § 1505(e)

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arribaWhat is the difference between an annulment and a divorce? What are the grounds to file for an annulment in Delaware?

If you get your marriage annulled, it basically means that (legally) the marriage “never happened.“  When filling out forms, for example, if the forms ask if you were married before, you can say “no.”  If you get a divorce, this recognizes that the marriage was a legal marriage and it was dissolved (or ended) by a divorce.

You can file for an annulment if you can prove one of the following:

1. Either spouse was unable to consent to the marriage when the ceremony was performed, either because of mental illness or incapacity, or because of the influence of alcohol, drugs, or other similar substances; or

2. Either spouse entered into the marriage because s/he relied on a fraudulent act or representation of the other spouse, and the fraudulent act or representation goes to the essence (core) of the marriage (for example, if your spouse lied and said s/he was heterosexual but later you find out that s/he knew s/he was gay when you got married); or

3. The husband or wife, or both, married because of duress (force/threats) by the spouse or by another person; or

4. The husband or wife, or both, got married as a joke or a dare. 

Note:
To file under the grounds for annulment listed in numbers 1 – 4 above, only the aggrieved (wounded) spouse can file no later than 90 days after you become aware of the described condition (i.e., incapacity, fraud, threats, or joke or dare).

5. Either spouse was physically unable to consummate the marriage (have sexual intercourse) and the other spouse did not know of the lack of physical ability at the time the marriage ceremony was performed.  Note: Either spouse can file for an annulment no later than 1 year after you become aware of the lack of ability.

6. Either party was under 18 at the time of the marriage and did not have the consent of his/her parents or guardian or judicial approval.  Note: Only the spouse who was underage (or his/her parent or guardian)can file for an annulment no later than 1 year after the date of the marriage. 

7. The marriage is prohibited by law and therefore void – here are some examples of void marriages:

  • if your spouse is already legally married to someone else (bigamy);
  • a marriage to your sibling (including half-sibling), uncle, aunt, niece, nephew, or first cousin;
  • if either spouse is on probation or parole and did not file with the marriage-license clerk a written consent to the marriage from the appropriate person in the court or institution that granted the probation or parole.*
Note: Either spouse can file to annul based on the grounds mentioned in number 7, above, at any time before the death of either spouse.  (It can even be filed after the death of a party within certain time limits.)*

Note: Property can still be divided up, just like in a divorce.  Also, children born in the marriage are still considered to be “legitimate.”**

* 13 Del.C. § 1506(a) & (b); see also 13 Del.C. § 101(a) & (b)
** 13 Del.C. § 1506(c) & (d)

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arribaWhat are the residency requirements to file for divorce in Delaware?

To file for divorce in Delaware, either spouse must live in the state or be stationed in the state as a member of the armed services of the US for at least 6 months before the filing of the petition.*  Note: The court can have jurisdiction (power) over divorces and annulments of same-gender marriages that are solemnized in Delaware or created by conversion of civil unions pursuant to the laws of Delaware, even if neither resides in Delaware.  For more information, please consult an attorney.  You can find legal referrals on our DE Finding a Lawyer page.

* 13 Del.C. § 1504(a)

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arribaWhat are the basic steps for filing for divorce?

While divorce laws vary by state (and these are not Delaware-specific), here are the basic steps:

  • First, you must meet the residency requirements of the state.
  • Second, you must have “grounds” (a legally acceptable reason) to end your marriage.
  • Third, you must file divorce papers and have copies sent to your spouse.
  • Fourth, if your spouse disagrees with anything in the divorce papers, then s/he will have the opportunity to file papers telling his/her side.  This is called “contesting the divorce.”  If s/he contests it, then you will have a series of court appearances to sort the issues out.  If your spouse does not disagree with anything, then s/he should sign the papers and send them back to you and/or the court.  If your spouse agrees with everything and signs the papers, this is called an “uncontested divorce.”  Also, if a certain period of time passes and your spouse does not sign the papers or file any papers of his/her own, you may be able to proceed with the divorce as an uncontested divorce anyway.  (In Delaware, your spouse has 20 days after s/he receives the petition by personal service, receipt of service by mail, his/her appearance in court or an appearance by his/her lawyer, 20 days from the date of publication of notice to file a response or counerclaim.*)
  • Fifth, if there is property that you need divided or if you need financial support from your spouse, then you will have to work that out either in an out-of-court settlement or in a series of court hearings.  Custody may also be decided as part of your divorce.
* 13 Del.C. § 1511(a)

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arribaDo I need a lawyer?

You don’t need a lawyer to file for divorce.  However, divorces can become very complicated, especially if there are custody or property division and support issues involved.  It may be in your best interest to hire a lawyer, especially if your spouse has one.

It is very difficult to predict how much a divorce will cost.  It will depend on many factors, including things like how much your lawyer charges per hour, what kinds of issues are involved in the case and how complicated they are, whether you need any experts such as psychologists, whether a guardian ad litem is appointed for your child(ren), and whether or not you and your spouse can agree on any of the issues.  Also, depending on the situation, the court may order your spouse, based on the financial resources of both parties, to pay all or party of your attorneys’ fees,* so you may want to speak with your attorney about this.

If you can’t afford an attorney, you may be able to get free legal services. You may be able to find an attorney on our DE Finding a Lawyer page.  If you do decide to represent yourself, you may be able to find some helpful forms on the Delaware State Courts website. You may also want to check out Where can I find additional information about divorce?

* 13 Del.C. § 1515

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