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Know the Laws: Delaware

UPDATED April 12, 2017

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General information about divorce in Delaware.

Basic info

back to topWhat 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, which you both agreed upon;
  2. separation caused by your spouse’s misconduct (bad behavior); Note: The misconduct must be 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), willful refusal to perform marriage obligations, getting a sexually transmitted disease, habitual drunkenness or drug use;
  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.**

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)

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back to topWhat 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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back to topWhat 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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back to topWhat 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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back to topDo 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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Information on alimony

back to topCan I get alimony? For how many years would I get the payments?

Your spouse can be ordered to pay you alimony if the judge finds that you were financially dependent on your spouse during the marriage.  You can prove you were “dependent” if all of the following apply:

  • you relied on your spouse for financial support,
  • you don’t have sufficient property (including marital property) to provide for your needs, and
  • you are unable to support yourself through work or you cannot work due to caring for a child whose condition makes it “inappropriate” for you to work.*
Even if you can prove you are “the dependent party,” there are still many factors a judge will consider when deciding if you will get alimony and how much you will get.  See What factors will a judge consider when deciding whether or not I get alimony? for more information.

Alimony payments can be ordered to start while the divorce is still pending in court (known as interim or temporary alimony)** and for a period of time after the divorce is finalized.  The court will determine how long you or the other party will receive alimony.  If you have been married for 20 years or longer, there is no limit to how long you can receive alimony.  However, if you were married for less than 20 years, you cannot collect alimony for more than 50% of the length of the marriage.***  For example, if you were married for 10 years, you could only collect alimony for up to 5 years.

* 13 Del.C. § 1512(a),(b)
** 13 Del.C. § 1512(a)
*** 13 Del.C. § 1512(d)

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back to topWhat factors will a judge consider when deciding whether or not I get alimony?

When making a decision about if you will get alimony, how much alimony will be awarded, and for how long it will last, the judge will consider many factors including, but not limited to:

  • Your financial resources, including any marital property or separate property you will own at the end of the divorce and your ability to meet your needs on your own;
  • If you need any additional education or training to find a job, the court will consider the time and expense necessary for that education or training;
  • The standard of living established during the marriage;
  • The length of the marriage;
  • The age, physical, and emotional condition of both parties;
  • Any financial or other contribution (like housekeeping or child care) made by either party to the education, training, vocational skills, career, or earning capacity of the other party;
  • The ability of your spouse to meet his/her needs while paying you alimony;
  • The tax consequences of alimony payments;
  • Whether either party has put off or given up economic, education, or other employment opportunities during the course of the marriage; and
  • Any other factors the judge thinks it is fair and appropriate to consider.*
Note: Marital fault will not be considered (for example, if one of you had an affair).*

If you are awarded alimony, your spouse no longer has to pay it once one of the following happens (unless you both agree otherwise in writing and it is provided for in the divorce decree):
  • either of you die;
  • you remarry; or
  • you live with an intimate partner of either sex and you both hold yourselves out as a couple (known as cohabitation).  It does not matter whether or not you get any financial benefit from the relationship and proof of sexual relations is not required to prove cohabitation.**
Note: If you waived (gave up) your right to alimony before, during, or after the marriage in the form of an agreement, such as a pre-nuptial agreement or a post-nuptial agreement, you cannot be awarded alimony.***

* 13 Del.C. § 1512(c)
** 13 Del.C. §§ 1519(b), 1512(g)
*** 13 Del.C. § 1512(f)

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back to topCan an alimony award be modified (changed)?

Maybe.  Alimony may be modified (changed) only if a party can show a real and substantial change of circumstances.*  For example, if the person ordered to pay alimony loses his/her job and can’t find another one, this might be a reason for a judge to reduce the amount of alimony s/he has to pay.

Note: If you fail to do something that you are required to do under a temporary order or the divorce decree, this does not mean that your spouse can just stop paying alimony.  S/he may, however, go to court and ask the court to enforce the temporary order or decree or to ask for a suspension of your alimony payments if appropriate.**

* 13 Del.C. § 1519(a)(4)
** 13 Del.C. § 1520

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Additional information

back to topIf I am getting divorced, can I take my kids out of the state?

It depends.  Once a petition for divorce or annulment has been filed, a restriction called a “preliminary injunction” is put in place against both parents that prohibits them from taking any children who live in Delaware out of the state without the prior written consent of your spouse or the permission of the court.  So if you want to take your child out of the state, even for vacation, you should ask the other parent for written permission or the judge for permission first.*

Note: The preliminary injunction applies to the petitioner as soon as s/he files the petition and against the respondent as soon as s/he is served with a copy of the petition.

* 13 Del.C. § 1509(a)(3)

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back to topCan I have my name changed back to my maiden or former name?

Yes.  You can ask the court in a pleading (the complaint or answer) or in a motion to order that you can resume your maiden or former name.*

* 13 Del.C. § 1514

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