Legal Information: Delaware


November 4, 2022

What 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.1 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.2

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.3

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.4

1 13 Del.C. §§ 1502(3), 1505(a)
2 13 Del.C. §§ 1503(8), 1503
3 13 Del.C. §§ 1503(7), 1507(e)
4 13 Del.C. §§ 1503(7), 1505(e)

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