Legal Information: Delaware


September 13, 2023

What are the basic steps for filing for divorce?

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?

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