Conozca la Ley: Delaware
ACTUALIZADA 12 de abril, 2017
General information about 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:
The word “separation” used in numbers 1, 3, and 4, 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 #2 above). However, you may file for divorce at any time after you have separated from your spouse. It does not mean you must be separated for 6 months before you can file, just before the divorce is granted.***
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. 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.****
* 13 Del.C. §§ 1502(3), 1505(a)
** 13 Del.C. §§ 1503(8), 1503
*** 13 Del.C. §§ 1503(7), 1507(e)
**** 13 Del.C. §§ 1503(7), 1505(e)
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:
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)
While divorce laws vary by state (and these are not Delaware-specific), here are the basic steps:
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