Divorce

If you get your marriage annulled, it basically means that according to the law, 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 grounds:

1. Either spouse was unable to consent to the marriage when the ceremony was performed because of:
   • mental illness
   • incapacity or
   • the influence of alcohol, drugs, or other similar substances;
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);
3. Either spouse (or both) got married because of duress (force/threats) by the spouse or by another person;
4. Either spouse (or both) got married as a joke or a 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.
6. Either party was under 18 at the time of the marriage and the marriage was not confirmed by such underage party after reaching legal age. 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:
   • your spouse is already legally married to someone else (bigamy);
   • you married 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.¹

Note: There are certain time limits to file for an annulment based on the ground that you are alleging and in some situations, only one spouse can file. The rules are:

• To file under the grounds for annulment listed in numbers 1 – 4, only the aggrieved (wounded) spouse can file the annulment. It must be filed within 90 days after s/he becomes aware of the described condition (i.e., incapacity, fraud, threats, or joke or dare).
• To file under the grounds for annulment listed in number​ 5, either spouse can file for an annulment no later than 1 year after s/he becomes aware of the lack of ability.
• To file under the grounds for annulment listed in number 7, either spouse can file at any time before the death of either spouse. (It can even be filed after the death of a party within certain time limits.)¹

In an annulment proceeding, property can still be divided up, just like in a divorce. Also, children born in the marriage are still considered to be “legitimate.”²

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

While divorce laws vary by state, here are the basic steps, generally:

1. First, you must meet the residency requirements of the state in which you wish to file.
2. Second, you must have a legally acceptable reason (“ground”) to end your marriage. The grounds can be fault-based (such as adultery or cruel treatment) or no-fault-based. The most common no-fault divorce ground is often called “irreconcilable differences,” an “irretrievable breakdown” of the marriage, or something similar.
3. Third, you must file divorce papers and have copies served on your spouse. (To learn more about filing a summons, preparing a petition, and service of process, go to the Starting the Court Case page in our Preparing for Court - By Yourself section.)
4. Fourth, how the divorce goes forward will depend on whether your spouse agrees to the divorce and/or whether or not your spouse responds to the divorce complaint once it is served upon him/her. Here are a few different possibilities of what could happen:
   • If your spouse agrees with everything in the divorce papers, s/he should sign the papers and send them back to you and/or the court. This is called an “uncontested divorce.” If there is property that you need divided, if custody of children is an issue, or if you need financial support from your spouse, you will have to agree about those issues in an out-of-court settlement in order to have an uncontested divorce. However, when there are children of the marriage, some states require that custody be decided as part of the divorce. Therefore, in those states, you could not get an uncontested divorce if you cannot agree upon a custody arrangement.
   • 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. You should speak to a lawyer in your state about how long you have to wait to see if your spouse answers the divorce papers before you can continue with the divorce.
   • If your spouse disagrees with anything in the divorce papers, your spouse will then have the opportunity to file papers telling his/her side and asking for the outcome s/he wants. This is called a “contested divorce.” Even if your spouse agrees that s/he wants to end the marriage, disagreement on property, finances, custody, or other issues means you may have to attend a series of court appearances to have a judge decide those issues.

You can find more information about service of process in our Preparing for Court – By Yourself section, in the question called What is service of process and how do I accomplish it?