Anyone who has been through a divorce can tell you that the process is exhausting.
Not only is it a massive life change, but it is also a complicated and involved legal process. The emotions involved in a divorce lay across the spectrum: grief, anger, fatigue, confusion, and more.
The divorce laws and nuances in Delaware only serve to add to your confusion. If you are considering divorce or just starting on this journey, you are probably feeling pretty lost.
Fortunately, we have put together this comprehensive guide to help you get through this.
Keep reading for all of the information you will need to navigate your divorce in Delaware, including the types of divorce, the specific laws surrounding each situation, whether or not you should hire a lawyer, the considerations relating to child support or alimony, and much more.
Types of Divorce Laws in Delaware
Specific rules and laws govern divorces in each state. The Delaware State Code outlines the procedures and Laws that determine how to complete each case.
The Delaware laws on domestic relations, including marriage, custody, divorce, and more, are laid out very clearly in Title 13 of the state code.
Chapter 15 and its 23 included sections are related to divorce and annulment and contain all of the specific divorce laws in Delaware.
The code covers every scenario and provides a guideline for each situation. Divorce in Delaware is not a subjective matter. The laws cover each step of the divorce process and outline how the courts will approach child support, custody, alimony, property division, and more.
You must follow state law. Even small mistakes or missteps can cause delays in your divorce proceeding.
This guide will use the words “divorce” and “dissolution” interchangeably to mean the legal end of a marriage. However, Delaware uses “dissolution” to refer to the end of a civil union.
Title 13, Chapter 2 of the Delaware Code describes civil unions. Before July 1, 2013, a civil union was the state’s alternative to same-sex marriage. In 2013, Delaware became the 11th state to legalize gay marriage.
With this legalization, Delaware offered same-sex couples in civil unions the opportunity to apply to the Clerk of Court to convert their relationship to a legally-recognized marriage.
As of July 1, 2014, all civil unions (unless they were pending a dissolution) automatically converted to marriage, and the couples only had to apply for a copy of their marriage certificate.
Before Delaware eradicated civil unions in favor of same-sex marriage, the dissolution process was the same as a legal divorce.
There are different types of divorce you can pursue in Delaware. The kind of divorce you will get relies on the reason and whether or not you and your spouse agree on the grounds and terms of the dissolution.
The word “grounds” means the reason for the divorce. In an at-fault divorce in Delaware, one party accuses the other of misconduct. A no-fault divorce does not require a reason or proof of wrongdoing from either party. Each ground is listed and defined in § 1505, Chapter 15, Title 13, Delaware Code, which spells out the intricacies of this law.
Unless you attempt to prove fault in the divorce, the only requirement is a separation period of six months. There is no legal separation in Delaware, so you have no obligation to file for anything or inform the state of your intentions.
There are two types of divorce in Delaware. These types of divorce are known as contested and uncontested, and they influence the procedures you will follow and the length of the dissolution process.
Figuring out if your marriage dissolution will be a contested divorce or an uncontested divorce will rely on your circumstances and whether you and your former partner agree on the terms of the divorce and the grounds on which you file for dissolution.
Unless you cannot find your spouse or there is an immediate danger to you or somebody else if you and your ex-partner communicate, it is best to discuss the impending divorce and try to come to fair and agreeable terms.
You and your spouse may have many details to hammer out together.
For example, child custody makes a divorce more complicated than anyone desires. A custody battle can be a contentious and emotional point that leads to further fighting and anger.
If you and your spouse cannot agree on custody terms, you will want to familiarize yourself with the custody laws in Delaware and understand how they work during your divorce proceedings.
In addition to custody, child support is another point of friction. Will you or your spouse have to pay child support or alimony (otherwise known as spousal support)?
These are the questions you will have to address during the divorce. You and your ex may not see eye to eye and may need a judge to intervene.
You or your spouse might desire to split your property or assets in the divorce. Delaware is an equitable distribution state, which means you do not automatically split property 50/50.
You distribute marital property in a manner intended to be fair to both parties.
We will review all of the considerations you must make when filing for divorce in Delaware, but first, we will give an overview of the two types of divorce.
Contested Divorce
A contested divorce is the more complicated of the two types of divorce.
Contested means opposed or objected. If your case is a contested divorce, this indicates that you or your spouse do not agree on the terms and require intervention and assistance from the family court on at least one aspect of the filing.
To start any divorce proceeding, one party must go to the Family Court in the Delaware county where either they or their spouse resides and file a Petition for Divorce/Annulment.
Once served, the spouse will file an Answer to Petition for Divorce/Annulment, or they choose to do nothing.
The Delaware Family Court considers a divorce contested once the respondent (meaning the person who gets served with the initial divorce complaint) files an Answer with the courts objecting to the divorce terms laid out in the Petition for Divorce.
The respondent can object to any part of the Petition.
The objection could mean that you need a judge to decide on the custody of your children, alimony or child support payments, distribution of assets, or all of the above. Or, a contested divorce might mean that one of you disagrees with the grounds for the divorce.
For example, if you have filed for divorce on the grounds of misconduct and you cite your partner’s adultery as the reason, your partner can file an answer contesting this.
They can claim the adultery never happened, counter with an accusation against you, or ask the judge to grant the divorce on different grounds, like six months of separation.
Once someone contests a divorce, the courts automatically schedule a hearing.
If you are going through a contested divorce, you will want to buckle up for a more strenuous process.
We always suggest that you speak to an attorney to protect yourself and your rights during this emotional process.
In almost all cases, it is preferable to pursue an uncontested divorce. If you and your spouse can agree on the terms, you will both save a lot of time, money, and hassle.
However, in some cases, you may need a contested divorce. If there is domestic violence involved, you and your spouse cannot agree on divorce terms, or another reason, a contested divorce might be your best option.
There are a few requirements during your divorce. Delaware state law requires mediation between parties when children are involved.
In some situations, you can file a motion to bypass mediation. The Family Court will only approve this in extreme circumstances.
The courts will disallow mediation if they have found domestic violence between the parties, if an Order of Protection exists, or if one of the parties is a tier 2 or 3 sex offender.
In most divorces, mediation is an excellent step to getting opposing spouses on the same page. You will work with a certified Mediator to create an agreement. Usually, this agreement deals with child support and custody.
If you cannot solve these issues in mediation, you will attend a hearing where a judge will decide. The Family Court judge will be required to look at the dispute objectively. In the custody section below, we will review the considerations the judge must make.
Another requirement in any divorce that involves children up to the age of 17 is that the parties attend a Parent Education class. The course is not a parenting class. It is a class that teaches divorcing couples how to deal with their divorce as parents.
Both parties must file a Certificate of Completion within 180 days of filing the divorce petition. If this certificate is not submitted, the courts may dismiss the divorce entirely.
Pros & Cons
Pros
You can fight for what you feel you deserve
If you and your spouse can not get along, this will help move through the process with 3rd parties
Cons
You may have to go to trial
These types of divorce tend to take much longer
It's more expensive than uncontested or simplified divorces
Typically more stressful
Uncontested Divorce
An uncontested divorce in Delaware means one of two things:
The respondent did not file an Answer to the Petition for Divorce/Annulment within 20 days of receipt, or
The respondent filed an Answer agreeing with the terms of the divorce.
You can obtain an uncontested divorce if you and your soon-to-be-ex-spouse meet the legal requirements for a divorce in Delaware and agree on all terms.
You must meet the residency requirement and separation or grounds requirements.
Delaware separates ancillary relief (property division and spousal support) from the divorce proceeding. This separation means that a judge decides the distribution of marital property and debt or the issuance of alimony payments at a separate hearing after finalizing the divorce.
There will be an ancillary hearing to determine the outcome of these issues. This practice is great because it does not delay the actual divorce.
Uncontested divorces are considerably more manageable than contested divorces. You may even be able to dissolve your marriage without ever stepping foot in a courtroom.
The Plaintiff, or the spouse who files the initial Petition for Divorce, will have a choice of which type of divorce proceeding they would like.
They can request a hearing to confirm and order the divorce. If the petitioner chooses a hearing, they must attend. However, it is optional for the respondent to come to this hearing.
The other proceeding does not require standing in front of a judge. The petitioner can choose for the courts to decide the divorce based on the papers filed by the parties.
To have a divorce decided on the papers, you must take specific steps and file the proper paperwork. We will review all of the paperwork involved in your divorce in detail in the “Filing” section.
Pros & Cons
Pros
Uncontested divorces save you time and money
Drama free way to end the marriage
These divorces tend to process quicker
You can avoid taking the divorce to trial
Cons
Requires the ability to navigate the divorce process
If domestic violence is involved, a contested divorce is safer
Neither spouse can demand additional spousal support or child support unless the other agrees.
Both spouses give up the right to appeal the terms of the divorce in the future.
If you qualify for an uncontested divorce, using an online divorce service is a great way to save a lot of money. Keep in mind in Delaware, divorce can cost over $15,000 in fees if you file for divorce with an attorney.
We reviewed, rated, and ranked the best online divorce services available and our #1 choice is 3StepDivorce.
We earn a commission if you make a purchase, at no additional cost to you.
Key Takeaways
Divorce laws in Delaware can be complicated, but the state provides all of the information publicly in plain language so that you can navigate your divorce process easily. The two main types of divorce in Delaware are contested and uncontested. Which one you have depends on the circumstances of your divorce.
Residency Requirements in Delaware
Before filing for divorce in Delaware, you must ensure that you or your spouse meet the legal residency requirements for a divorce proceeding in the state.
Residency is crucial. If the Delaware government does not recognize that the state has jurisdiction over your union and divorce, it will halt the process.
Avoid this unnecessary interruption and delay by determining whether you meet the residency requirement before filing for divorce.
According to §1504 of Title 13, Chapter 15 of the Delaware State Code, you or your spouse must have actually resided in Delaware for at least six months immediately preceding the divorce filing. This law applies to members of the Armed Services as well.
If one or both of you are stationed in the state for six months or more, you qualify as a resident and can proceed with the divorce process in the Delaware courts.
Section 1503 of the same chapter defines “actually resided” as “domiciled.” This definition means that it is not enough to have property or family in the state. You or your spouse must have physically lived in Delaware before you can file for divorce.
Some specific situations may come up when examining the residency requirements of Delaware.
What if One of Us Lives Out of State?
In some states, this can be a tricky process. Fortunately, in Delaware, the residency requirement only applies to one party, whether the filer or the respondent.
Specifically, it is okay if you or your soon-to-be-ex live in another state, as long as one of you meets the six-month requirement.
What if I Cannot Locate My Spouse?
Attempting to divorce someone when you do not know their whereabouts is a frightening prospect. Delaware is one of the few states that make this scenario simple.
If you cannot locate your spouse, file for divorce as normal. You will fill out Form 241, or an Affidavit that a Party's Address is Unknown, and file it with the Clerk of Court.
If you have filled out Form 241 or provided the courts with an address but they were unable to serve your spouse, they will notify you that publication is necessary.
The Delaware Family Court website contains a Legal Notices section. When we wrote this guide, the site was under construction and listed as “coming soon.”
You may post your listing on this Legal Notices website, or you can print it in one of the approved newspapers. You only have to publish your notice one time to satisfy the legal requirements.
If the court receives no answer from your missing spouse, you will proceed with an uncontested divorce.
Key Takeaways
Delaware’s residency requirement is that at least one party in a divorce must have physically resided within the state for six months or more. This includes military members stationed in Delaware.
Grounds for Divorce in Delaware
Many states divide divorce into two categories: “fault” and “no-fault.” Delaware does not use these terms, but the concept is the same. The available divorce grounds in Delaware are a mixture of fault and no-fault.
An at-fault divorce is one in which one of the parties accuses the other party of misconduct.
Bigamy, or already being married to somebody else.
Conviction of a crime that leads to incarceration for at least one year.
Physical or oral abuse against the spouse or children living in the home.
Desertion, or abandonment.
Willful refusal to perform marriage obligations.
Contracting venereal disease, or a sexually transmitted infection.
Habitual intemperance, which refers to drunkenness.
Habitual use of illegal drugs or other incapacitating substances.
Other serious offenses that will destroy the marriage.
If you file for divorce on the grounds of misconduct, understand that you will have to prove any allegations that you make against your spouse. You will do this by submitting evidence to the court.
If the court grants divorce on the grounds of misconduct, the separation requirement does not apply. If you can prove misconduct, such as adultery or desertion, the court will not consider the length of time that you and your spouse have lived apart.
In a no-fault divorce, you do not have to prove misconduct. No evidence is necessary. What this means is that you are divorcing because the marriage is irretrievably broken and that reconciliation is improbable.
To obtain a divorce without proving misconduct, the couple has to fulfill a separation requirement.
Delaware requires that divorcing couples live separately for at least six months before filing for divorce.
Unlike many other states, Delaware allows separated couples to live in the same house as long as they do not share a bedroom or engage in sexual relations together.
According to § 1505, Chapter 15, Title 13, Delaware Code, if the couple resumes sexual activity or temporarily sleeps in the same room during the separation as an attempt to reconcile the marriage, they are still considered a separated couple.
This rule means that they do not have to start their six-month separation period over again, as long as they do not sleep in the same bedroom or have sexual relations during the thirty days immediately preceding the divorce.
A no-fault divorce, or a divorce on the grounds of separation, is a simpler process than an at-fault divorce because you are not required to submit evidence of your partner’s wrongdoing.
Choosing a divorce on the grounds of voluntary separation does not mean that you or your ex-spouse are blameless in the dissolution of your marriage.
However, approaching your divorce in this manner can make it less contentious and possibly lead to a simpler, uncontested divorce.
Key Takeaways
Delaware allows couples to divorce on several grounds. Divorce because of separation is considered a “no-fault” divorce, while a divorce on the grounds of misconduct is an “at-fault” divorce.
Using a Delaware Divorce Attorney
Perhaps the biggest question you will ask yourself when considering divorce is whether or not you should hire a divorce attorney.
This is a big decision that can be influenced by several elements.
If you are going through a complicated or contested divorce, we always suggest that you consult with a lawyer so that you are protected and have somebody to guide you through the long and confusing process.
However, it is not always crucial that you hire a lawyer. If you can avoid paying for representation, you can potentially save yourself thousands of dollars in divorce-related legal fees.
Divorce costs can be exorbitantly high. You will want to save money wherever possible.
We wanted to help you unravel the confusion surrounding the attorney question, so we dedicated part of this detailed guide solely to divorce attorneys.
We will cover when you should or shouldn’t use an attorney, and which factors will influence your decision, the pros and cons of hiring a divorce lawyer, and how to choose the right lawyer for you.
If your divorce is uncontested and you have a solid understanding of the laws and the procedures around your divorce, you can probably proceed without an attorney. In many such cases, you do not need to go to court in Delaware.
However, if you have obstacles that are in the way of you and your spouse having an uncontested divorce or if you are not confident in your ability to navigate the legal system and complete the dissolution without assistance, you may want to hire counsel.
Some of the factors that increase your chance of needing an attorney include:
Whether you and your partner own property or assets, especially if they have a high value
If there are children aged 17 or younger involved in the union
If you and your spouse agree on the terms of the divorce, or if it is contentious
Whether or not you are filing a no-fault (separation grounds) or at-fault (misconduct) divorce
The major disadvantage to hiring representation during this process is that attorneys cost money.
Since lawyers charge anywhere between $100 and $300 (or even more) per hour, the costs of hiring an attorney in your divorce can range well into the thousands.
However, the advantages of obtaining counsel may outweigh the costs. With a lawyer on your side, you have someone to help you navigate the complicated legal system and ensure that you proceed with the divorce properly according to Delaware law.
Since divorce law is so strict and everything must be filed correctly and within the appropriate timeframes, having a legal team ensures that you do not miss any important deadlines or commit any careless errors when filing your divorce petition or answer, or any other motion or paperwork that is required.
Since your lawyer is such an important part of your divorce process, you must find one that has adequate experience and who makes you feel comfortable.
This period of your life is difficult and confusing, so you want to choose the right lawyer.
You must have faith in your attorney and be able to communicate with them effectively. This is the person you are trusting with representing you during a major life event, so they have to be the right fit for you.
The best divorce attorney is one that you feel completely at ease around. You must be comfortable with this key player in your divorce proceedings.
A good divorce attorney will possess several qualities.
These include the following:
Communication – One of the most important aspects of your attorney-client relationship will be communication. Your attorney should be articulate, easy to understand, and responsive. You must be able to reach your lawyer with questions and other communications relating to your case.
Experience – Since the outcome of your divorce is so crucial, you must hire someone who knows what they are doing. Your counsel should be well-versed in Delaware divorce laws. If you have a unique situation, it’s best to seek out an attorney who has dealt with something similar in a previous divorce case, preferably with a good outcome.
Passion – You do not want an attorney who will do the bare minimum for you. You want to find a lawyer who is passionate about family law and will approach your case aggressively.
There may be other qualities that you will want to see in an attorney before hiring them to handle your divorce. Make sure to jot these down so that you can reference your list of qualifications while on the hunt for counsel.
How to Find a Good Divorce Attorney
Now that you know what qualities you are looking for in a lawyer, you have to find someone who fits the bill.
The first step when looking for a good divorce attorney is to determine your budget. Since you already have a list of qualities, you will be further narrowing down your search by only speaking to attorneys you can afford.
Here are some tips for finding lawyers that may meet your needs:
Ask friends and family for recommendations. The people you know may be able to help you find a great lawyer (or help you stay away from an awful one).
Check the White Pages and call local attorneys. Most attorneys will be listed in the phonebook. You will probably also see advertisements on billboards and social media.
Use one of the free online lawyer directories from Lawyers.com or Martindale. These sites also feature customer and peer ratings so you can get an idea of how others feel about each professional.
Once you have created a list of attorneys, call them to gather more information and to schedule an interview or consultation.
Rank the attorneys in order of how interested you are in working with them. You will start with your top pick.
If you interview your favorite and feel comfortable proceeding, then your search is over. If not, then move on to the next lawyer on your list!
Interview Questions for Divorce Attorneys
The first time you meet with a potential divorce lawyer, you will want to ask them some questions to determine whether they will be a good fit for your case.
These questions will help you decide if a lawyer has the qualities you are looking for and if the two of you are capable of working together in this capacity.
Do you specialize in family law?
How many cases like mine have you worked on?
What are your retainers and hourly fees?
If you are not available to answer a question, is there someone in your office who can answer it for me?
What would your strategy be for my case?
Have you worked many cases in this county? (Or with this judge, opposing counsel, etc.)
Is the Initial Consultation Free?
Many attorneys offer a free initial consultation. This depends entirely on the lawyer and their practices.
If you are unable to locate an attorney who offers a free or affordable first meeting, the Online Lawyer Referral Service of the Delaware State Bar Association will help you arrange an initial 30-minute consultation with an attorney for a $35 fee.
Is the Meeting Confidential?
Yes. Even if you do not hire an attorney after meeting with them, the initial consultation will be confidential, and none of the details of your conversation can be used against you.
In most areas, once you have consulted with an attorney, your ex cannot retain their services. It is considered a breach of ethics for the lawyer to oppose you even if you do not hire them, since they will have gained inside information unfairly.
Pros of Using an Attorney
The advantages of using an attorney are numerous:
You will gain increased confidence in the outcome of your situation knowing that someone is preventing you from making mistakes.
You’ll have a trained professional on your side to guide you through the process.
Putting your divorce in someone else’s hands takes some of the emotional pressure off of you in a difficult time.
In contested divorces, your chance of a favorable outcome is increased when you retain counsel.
Cons of Using an Attorney
The major downside to hiring an attorney is the cost. You could be spending anywhere from $5,000 to $30,000 or more.
When you involve a lawyer, you lose some of the control over your situation. You and your attorney may not see eye to eye on how to handle situations in your divorce.
Hiring an attorney in an uncontested divorce may intimidate your former partner and cause tensions to be higher between you.
Key Takeaways
There are many reasons why you would want to retain an attorney in your Delaware divorce. Whether or not you hire a lawyer depends on factors such as cost, contested or uncontested divorce, if children or property are involved, and more.
Filing for Divorce in Delaware
When you file for divorce, you must be sure to follow the proper steps and prepare all the paperwork correctly.
Any mistakes could lead to your divorce petition being dismissed, meaning you have to start the process over from the beginning.
Delaware’s family court system makes it simple to find the necessary forms, and the Divorce Instruction Packet details the process step-by-step.
This part of our guide will explain each step of the divorce process and lead you to the appropriate forms and documents so that you are fully equipped when filing for a divorce in Delaware.
Be aware that while this guide is excellent for those who are representing themselves in a Delaware divorce, if you elect to hire an attorney, your legal team will handle most of this process for you.
Pro Tip: The information below is perfect for you to get an overview of the divorce filing process and also use as a guide if you will be filing for divorce on your own. However, if you are using an attorney, their team will typically be taking care of these steps as part of their proper representation of you as a client.
Preparing Your Divorce Forms
You must prepare all of the correct forms properly so that your divorce goes smoothly.
Before filling out any paperwork, keep these tips in mind:
Double-check each form for errors to make sure everything is properly filled in and all of the information is up to date and correct.
Make several copies of each form. Keep one copy of each form you file in your records. This copy will be “clocked in” at the family court. This way, you have a record of the exact date and time you filed each document.
Be sure to always bring your photo ID with you to file documents. Family court staff will use this to identify you and verify your paperwork.
All of the divorce-related forms can be found on Delaware's family court website. We will refer to them by name so they are easy to locate.
You can print the blank documents and fill them in by hand, or you can fill them in electronically when available.
Initial Forms
These are the forms that must be filed initially when you are seeking a divorce. Delaware requires you to file the original and one photocopy of each form:
Form 442: Petition for Divorce/Annulment. Be sure to fill this form out completely and correctly. You must enter the correct Separation Date (remember that your divorce cannot be decided until six months from that date). This form will identify you and your spouse, establish residency and jurisdiction, certify your grounds and desire to get divorced, indicate any ancillary actions (such as property division or a name change), and select whether you wish to have a divorce hearing or have it decided on the papers you filed.
Form 240: Information Sheet. This serves as a contact / general information sheet about you and your spouse.
Form 441: Vital Statistics Certificate of Divorce. The information you will fill out on this form is similar to Form 240, but this sheet goes directly to Vital Statistics for their official records. It must be filled out in black ink or typed.
Your Original Marriage Certificate or a Certified Copy. If you do not have the original copy of your marriage certificate, you can obtain a certified copy from Vital Statistics in the state where you were married. Please note that you cannot get one from the Family Court.
Form 400: Request for Notice Form. This form is where you will indicate how to serve your former partner notice of the action.
Optional Forms – Dependent on Situation
If you have a situation matching the description of any of these forms, then that form must be filed with your initial divorce packet. As with other forms, file the original and one copy with the court.
Form 279: Affidavit of Children’s Rights. This form is required if you and your spouse have any children together who are under the age of 18.
Separation Agreement. This is not a court form, but an agreement between you and your spouse. If you have already agreed on property and debts, custody, child support, alimony, or any other aspect of your divorce, you will write these details down on a page titled “Separation Agreement” labeled with your case name and file number. You and your spouse must sign this in the presence of a notary, and you must also file a Stipulation form. This asks the judge to enforce the agreement that you and your partner created.
Form 443: Stipulation to Incorporate the Separation Agreement. File this with your Separation Agreement.
Form 241: Affidavit that a Party’s Address is Unknown Form. File this form after attempting to locate your spouse. Only use this form if you cannot locate a current address.
Form 421: Affidavit that a Party’s Social Security Number is Unknown. You must try to locate your spouse’s social security number before filing this form. Try speaking to your spouse or checking your financial/tax records.
Form 420: Waiver of Rights under the Servicemembers Civil Relief Act. File this if your spouse is in the military.
Form 465: Ancillary Financial Disclosure Report. This form is used if you request ancillary relief.
Form 257P: Application to Proceed In Forma Pauperis. This is a fee waiver. Fill this out if you are indigent or cannot pay the filing fees.
For more information on child custody as part of your divorce proceedings, Delaware has a Child Custody Instructions Packet available. However, we recommend that you hire a lawyer for all contested custody cases.
If your spouse files the Petition for Divorce and you are the respondent, you will prepare an Answer. The Divorce and Annulment Answer Packet contains a thorough guide on how to navigate your divorce papers as the defendant.
If you want assistance with preparing your divorce forms appropriately and instructions on how to file them correctly, using an online divorce service is a great idea to save a lot of money and hassle.
We reviewed, rated, and ranked the best online divorce services available and our #1 choice is 3StepDivorce.
We earn a commission if you make a purchase, at no additional cost to you.
Filing Your Divorce Forms
The term “filing” refers to submitting documents to the court or government entity that is in charge of entering them into the official record.
To file your divorce forms, you must discern which county has jurisdiction over the divorce. This can be the Delaware county where either you or your spouse currently lives.
Since Delaware only has three counties, it is easy to figure out where to bring your paperwork. You will file your papers at the Resource Center in the Family Court Building of each county. For New Castle County, the Resource Center is located in the Leonard L Williams Justice Center.
You may file your papers by mail to the appropriate address.
You must pay a filing fee. If you file by email, a staff member will call you for your credit card information. For this reason, make sure you include your phone number in the email.
Serving Your Spouse
Part of filing your divorce papers is the Request for Notice Form. This tells the court how you will be serving your spouse.
If your soon-to-be-ex resides in Delaware and you have his or her current address, you will ask the court to personally serve them. Someone will present the petition to them at their home or job.
If you do not know where your spouse lives, you will ask to publish notice of the petition in the newspaper. This is at your expense.
If your spouse lives out of state, the court will notify him or her by certified mail and publish a notice (at your expense) in the newspaper.
Financial Disclosures
The Ancillary Financial Disclosure Report is necessary for divorces that include ancillary relief (child or spousal support, division of assets, and more).
This is a detailed form that includes very personal financial information. Even if you do not want to share the information with your former spouse, you must enter it into the form.
Key Takeaways
Filing for divorce in Delaware is a simple process, but you must make sure that you follow the correct procedures to the letter to avoid any mistakes.
Using an online divorce service, you can file without an attorney, but you will still have the benefits of professional assistance through the divorce process.
You can prepare complex divorce documents and navigate the legal system. This frees you up to focus on leaving this part of your life behind and moving on.
With these services, you can be sure that the affair is handled correctly and still save money at the same time.
Online divorces eliminate confusion and difficulty, making the process much smoother and more bearable than a DIY or attorney-assisted divorce.
How to Qualify for an Online Divorce in Delaware
Online divorce services are not available for everyone.
Unfortunately, some issues are too complex to entrust to the internet.
To qualify to complete your divorce online, there are conditions you must meet:
Uncontested divorce: Because of the complexities of contested divorces, you are unable to file online. However, if your divorce is uncontested, you may be able to complete the process without leaving home!
Separation Agreement: You and your spouse should have reached a separation agreement. When using an online divorce service, the judge should not be requested to decide on any aspect of the divorce. You must have everything settled before filing.
Unlike in many other states, it is possible to get an online divorce in Delaware if you and your spouse have children together.
As long as you agree on the divorce terms (including custody, child support, alimony, etc.) and define these in your Separation Agreement, you can proceed with a divorce with children just like any other uncontested divorce.
Be aware that in all divorces where children are involved, whether it is amicable or contentious, Delaware requires that both parents complete a Parent Education Class and submit a Certificate of Completion.
This demand remains when filing for divorce online. You and your spouse must both submit the Certificate of Completion to avoid your divorce case being dismissed.
Many online divorce services even offer an online version of this parent education course so that you can complete each step of the process in one convenient location.
Best Online Divorce Services
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Do You Still Need to Go to Court?
If you file through an online divorce service, you will not need to go to court.
Certain conditions may make it necessary for you to go to the courthouse to file some paperwork, but in most cases, the online divorce service will file everything directly to the court on your behalf.
Since Delaware allows a divorce to be decided on the papers filed, a judge can grant your divorce without you ever stepping foot into a courtroom.
Just like in a DIY uncontested divorce where you file the forms yourself, you will have the option of a decision on the papers or a hearing that you must attend to finalize the divorce.
Most people choose to have the divorce decided on the papers. It is more convenient and does not require court attendance.
Keep in mind that in cases where children are involved, Delaware requires a short hearing to confirm the agreement between you and your spouse. This hearing usually lasts around fifteen minutes.
Key Takeaways
Online divorce services are convenient businesses that assist people with filing and completing simple, uncontested divorces. If you need to obtain an uncontested divorce in Delaware, an online service may be the right option for you. We recommend 3StepDivorce learn more >>
How Long Does It Take to Get a Divorce in Delaware?
If you’re researching divorce, you are probably ready to get it over with quickly.
Many people are eager to zip through the divorce process and find themselves on the other side. We know that you are probably no exception.
Luckily, Delaware is one of the easiest states to obtain a divorce in, so the process can be speedy- if it is not complicated.
Some elements can affect the divorce timeline and make it happen faster or slower.
For example, the speediest divorce in Delaware will be an amicable uncontested divorce, whereas a longer divorce will be a contested divorce with several unresolved issues.
Divorce in Delaware can take anywhere from one month to a year or more. The factors that increase and decrease divorce timelines are as follows. We will explore them in more depth below:
Contested or uncontested divorce: Uncontested divorces are the fastest, with contested divorces taking longer to finalize in the court system.
The complexity of issues: The harder it is for you and your spouse to agree on divorce terms, the longer it will take to find a resolution and dissolve your marriage.
Asset division: If you have a lot of property, you may be finding it more difficult to agree on the terms of your divorce. Luckily, Delaware makes this less of a barrier to a speedy divorce.
Is the Divorce Contested?
Contested divorces take longer.
An amicable, uncontested divorce can be completed in as little as 30 days from the date it was first filed.
If a divorce is contested, the parties will have to wait and complete all of the other steps in the process. They must attend mediation and hearings.
If they cannot find a solution and come to an agreement in mediation, they have to wait for a judge to hear the evidence and decide on a resolution for them. This could extend the divorce timeline by weeks or months.
Remember that even in a straightforward uncontested divorce in which the parties agree on all aspects of the divorce, Delaware requires a six-month separation period before granting a divorce.
Therefore, it technically takes six months to obtain a divorce in Delaware. However, you may file the petition for divorce towards the end of the six months of separation.
The time you and your spouse spent separated counts regardless of when you file the divorce petition.
How Complicated Is the Divorce?
The more complex the divorce, the longer it will take.
A perfect example of this is child custody. In divorces where custody is not agreed upon and the courts must decide, the divorce can take much longer.
Delaware Family Court requires divorcing parents to take a Parent Education class and attend mediation. The parent education course can be taken in person or online and can usually be done quickly.
Mediation may delay the proceedings. If you and your spouse cannot agree during mediation, the court will have to decide. In this instance, you will have to wait for a hearing date to be assigned so you can make your case before a judge.
The other factor that may delay a divorce is if you or your spouse disagree on the grounds for divorce. The easiest way to get a divorce is to file on grounds of voluntary separation for a period over six months.
If you or your spouse file or counter-file on the grounds of misconduct—like adultery, abuse, drug use, or any other reason—you must then submit evidence to the court proving the allegations.
Again, you will have to wait for a hearing. However, if the judge approves your evidence, your divorce could be granted at that hearing without consideration for the six-month separation period.
Most people select voluntary separation as their divorce grounds in Delaware, which makes child custody the biggest factor in delaying contested divorces.
Do You Have to Divide Assets?
If you and your spouse own a lot of property or assets, you may be worried that the division of your assets and debts will hold up the divorce process for even longer.
Because Delaware handles ancillary relief after the divorce decree is issued, some issues can be decided later. These include the following:
Property and debt division
Child support
Spousal support, or alimony
Any other relief that requires the judge’s assistance.
So, if you and your spouse agree on everything except the division of property, your divorce can be finalized before the hearing to handle this aspect of your union’s dissolution.
How to Finalize a Divorce in Delaware
Once your divorce is decided by a judge, it is final as long as you qualify for a divorce.
Delaware does not have a waiting period that specifies that couples must file any further paperwork or wait after a judgment to make their divorce official.
As long as you have been separated for six months (in a no-fault divorce), your divorce will be final immediately.
Key Takeaways
The timeline for a divorce in Delaware can vary wildly. Many factors influence how long it takes to get a divorce in Delaware, such as whether or not the divorce is contested, whether you and your spouse own property or have a lot of assets, whether you have children together or several other variables.
Divorce Costs in Delaware
As we stated previously, divorce costs can be through the roof.
Divorce in Delaware can cost anywhere from $165 to upwards of $30,000.
The main factors that will affect the cost of your divorce are the type of divorce and whether or not you hire representation.
An uncontested divorce is going to be quicker, easier, and cheaper. You can file everything on your own to save money, or you can pay an online divorce service to help you prepare the forms correctly.
You will spend a little bit more on an online service, but your forms will be free of mistakes.
If you use an attorney, be prepared for your wallet to take a big hit. The act of hiring an attorney adds several thousands of dollars in a retainer fee immediately, and it only goes up with each billable hour.
Other variations that influence the cost of your divorce are:
Court and filing fees. There are standard fees for filing your divorce forms. If you have further motions or extra paperwork that needs to be filed as the case goes on, you may be subjected to more filing fees.
Mediation costs. Mediation will save you money in the long run if you can agree. However, it is a required part of a contested divorce and must be paid for.
Parent education courses. If your divorce involves children, you and your spouse will be required to take a parent education class. You must pay for the class and present your Certificate of Completion to the court before you can get divorced.
Any other costs that may arise. There may be surprise costs involved in your divorce. This is why you should always be sure your paperwork is filed correctly and within the correct timeline, and that you double-check everything that you do. You don’t want to risk mistakes or having to pay a second time to file a divorce petition.
If you must file any subsequent motions during the divorce, the cost will be an additional $90.
There is a $30 Personal Service of Process fee to have your spouse served with the divorce papers. If you cannot locate your spouse, you must display a notice in the newspaper. The publication fee ranges from $25-$75, depending on the county..
Other administration fees include a $1 per page copying fee, $4 per page for certified copies, and $0.75 to $5 for envelopes and packets you may purchase directly from the family court.
If you cannot afford the fees, you may apply for a waiver using a form available on the family court website.
Attorney Fees
Attorney’s fees are broken down into three categories:
Initial consultation: The first attorney’s cost is the initial consultation. Many lawyers offer this free, while some charge part or all of their normal hourly rate. If you cannot afford a consultation, the Online Lawyer Referral Service will help you set up a 30-minute consultation with an attorney for $35.00
Retainer: Most divorce lawyers ask for a sizable fee to secure their services. The retainer is usually several thousand dollars. The attorney’s hourly rate is subtracted from this retainer. Once you have exhausted the funds from your retainer fee, your lawyer will request further payment.
Hourly rate: A divorce lawyer’s hourly rate in Delaware can range from $100-350 per hour.
As you can see, these costs can add up quickly. You may end up paying an attorney tens of thousands of dollars.
Litigation Costs
Litigation costs refer to the total dollar amount spent on legal fees throughout a divorce.
In addition to attorneys fees and court fees, this number is impacted by other factors in Delaware.
Parenting education classes are a requirement when there are children involved in the divorce. Not only must you attend the class but you have to pay for it yourself.
If there is domestic violence involved, one or both parties may be required to take domestic violence classes in addition to the parenting class. Classes are available both in-person and via Zoom.
Delaware has ruled that each parent education program can set its fees but that those fees cannot exceed $100 per person. One such class is $69.99, but the website offers financial aid to low-income families.
Further, if the custody portion of the divorce is contested, a judge may order that a Guardian ad Litem assist in determining custody.
If a GAL, who is an advocate specifically for the children involved in this legal dispute, is brought in, you and your spouse must split the costs. Costs for a GAL range from $500–$3000 or more.
While you and your spouse must split the cost of a mediator (which can be anywhere from several hundred dollars to several thousand), you may save money on the divorce in the long run.
If you can come to a settlement agreement during your mediation session and proceed with an uncontested divorce, you will save money on attorney’s fees and court fees for future hearings.
Online Divorce Service
Online divorce services are designed to save you time and money.
Since you are paying the service, you will be paying more money than you would be if you filed the paperwork without any help, but you will be saving thousands on attorney fees.
Online divorce services are advertised between $99 and $500+.
Key Takeaways
Many factors go into the costs of your divorce. No two cases are the same and you should consider all of your options carefully based your situation.
If you want assistance with preparing your divorce forms appropriately and instructions on how to file them correctly, using an online divorce service is a great idea to save a lot of money and hassle.
We reviewed, rated, and ranked the best online divorce services available and our #1 choice is 3StepDivorce.
We earn a commission if you make a purchase, at no additional cost to you.
Custody Considerations in Delaware
Custody is one of the toughest parts of a divorce.
Determining the placement of a child is never easy for any of the involved parties. Delaware has pretty straightforward child custody guidelines.
Most parents are given joint custody, which means the parents share the responsibilities of raising a child, while sole custody means that one parent has the primary duties and responsibilities towards that child.
Placement refers to physical custody, which can also be joint or sole. When one parent has sole placement, the other parent usually has visitation.
When deciding placement, custody, and visitation, the court uses a list of eight “best interest factors”:
The wishes of the parents. The court listens to and takes into consideration the arrangement that each parent desires.
The wishes of the child. The court believes that the child’s desires regarding his/her custody and living situation are just as important as the parents’.
The child’s relationship with his/her parents, siblings, family members, or other household members may affect this decision.
The child’s adjustment. The court may wish to examine how well-adjusted the child is in his/her community before making a decision that will remove him/her from that living arrangement.
The mental and physical health of all parties. The court will determine if everyone is fit and healthy or if the mental or physical health of the child or parents should influence the final decision.
How well each parent fulfills their duties as a parent. The judge will look at the parent’s history in satisfying their parental rights and responsibilities.
Evidence of domestic violence. The judge must consider any accusations of domestic violence and review evidence.
The criminal history of any party (or household resident).
The judge will always attempt to make a sound, objective, and unbiased decision that is based purely on the child’s best interest.
Usually, it is in the best interest of the child for the parents to resolve the custody dispute together in mediation to minimize fighting and contention.
Key Takeaways
Child custody is a contentious and emotional dispute, but Delaware’s laws highlight eight best interest factors that go into the decision for custody and placement.
Child Support Considerations in Delaware
In Delaware, both parents are obligated to provide financial support for their children until the age of 18.
Child support in Delaware is typically calculated using the Delaware Child Support Formula. However, the two parties may agree on an amount that is higher or lower than the courts would order.
The considerations that go into a child support order are:
Total earnings and income of both parents. The purpose of child support is to ensure that the child maintains a similar standard of living regardless of which parent they are with.
Support for other children. The amount of income that is designated for other children is considered in the total calculations.
Cost of health insurance, pension plans, union dues, and disability insurance. Whichever parent pays these costs receives credit for this.
Daycare expenses that enable the parents to work. In some limited circumstances, private school costs are considered.
The number of average annual overnights the child spends with each parent. (80
and 125 each trigger a parenting time adjustment. At least 164 overnights indicate shared placement.)
Many variables could go into a child support order. However, the court will usually enter each party’s financial information into the child support calculator and use the resulting amount.
Child support is designed to enforce parental responsibilities to the child. Delaware uses a standard formula to calculate child support payments but makes other considerations depending on the circumstance.
Alimony Considerations in Delaware
In Delaware, the courts make a distinction between alimony and spousal support. According to state law, a spouse in need is entitled to spousal support during a separation period.
Alimony is court-ordered financial support that is required during or after a divorce proceeding.
Alimony is rarely awarded in Delaware. The state uses the following considerations to make a decision:
The receiving spouse's finances, including marital or personal property, and their ability to support themself independently.
How long it will take for the receiving spouse to receive education and/or training to find adequate employment.
The standard of living during the marriage.
Both partners’ age, physical health, and mental condition.
How long they were married.
Each spouse’s contributions to the other's education/training, career, or earning power while they were married.
The paying spouse's ability to retain financial stability while paying alimony.
The tax effects of alimony payment on both parties.
Whether either spouse delayed or missed out on financial, educational, or career opportunities during the marriage.
Any other factor which the court finds relevant.
Key Takeaways
When alimony is requested, the court completes a thorough investigation of both parties’ finances and the circumstances that may merit such a request.
Division of Assets
Delaware is an equitable distribution state. Only marital property (property purchased during the marriage) is eligible for division.
Instead of dividing all property and assets evenly, the courts will decide a fair way to split up assets.
A divorcing couple can choose to divide their assets on their own. If they cannot agree, then they will include property division in the ancillary relief section of their divorce.
Once their divorce is final, a hearing will be held regarding the distribution of property.
Several types of property may need to be divided, and there are several considerations to keep in mind about each.
Real Estate
With regards to the family home, the court will take into consideration the needs of each party. For example, it is in the best interest of any involved children to remain in their home.
The judge will consider custody before assigning ownership of the home to either parent.
Any other real estate will be valued and divided accordingly or liquidated.
401k, IRA, Investments
Usually, investment accounts belong solely to the individual who is named on the account. However, any money contributed or earned during the marriage is considered marital property.
In these cases, a value is assigned and the non-named spouse receives payment for their interest in the account.
Businesses
Business can either be liquidated and divided, or the court can decide to assign ownership to one or both parties. The court will consider:
The contributions of each party to the day-to-day functioning of the business
The involvement of either party with the business
Any other factor the court deems vital in determining ownership
Other Assets
Over the course of the marriage, you and your spouse may have made other investments such as cars, jewelry, artwork, and the like, not to mention furniture and appliances. In most cases, individuals who are planning to divorce will meet to decide who gets what on the basis of equitable distribution.
Key Takeaways
Marital property is divided equitably in Delaware. This does not mean an even split. Rather, the property is divided based on the needs and merits of each individual.
Common-Law Marriage Considerations in Delaware
Common-law marriage is a relationship in which the two parties did not legally solemnize their marriage, but met certain conditions which allowed the state to recognize them as married.
The qualifications for common-law marriage vary by state. Frequently, the main requirement is that the couple cohabits and presents themselves as a married couple. Common-law spouses enjoy the legal rights and responsibilities as any other married couple if they are in a state that recognizes this type of union.
However, according to § 101, Title 13, Chapter 1, Delaware Code, if a common-law marriage is established and legally recognized in another jurisdiction where it is considered valid, that couple is afforded all of the rights and responsibilities of a married couple within Delaware.
Key Takeaways
Common-law marriages are recognized in a few states across the country. Delaware does not recognize common-law marriages as legal or valid.
Alternatives to Divorce in Delaware
Some people may change their minds about going through with a divorce. If you are having second thoughts about making the end of your marriage final, you are not alone.
There are plenty of reasons why one might choose to go down a different path instead of divorce.
Remember, you do not have to rush into a decision. You can take the time to explore if one of these options is a good fit for your situation.
Legal Separation
In a legal separation, a couple will ask a judge to sign an order declaring them separated. They can divide their assets and sign a temporary separation agreement deciding the terms of their separation, just like in a divorce.
Delaware does not recognize legal separation. There is no court order or filing that will enforce a separation agreement before the divorce proceedings.
However, you and your spouse may still choose to attempt a trial separation in which you live separately. Because there is not a legal separation designation or order, this will require trust to ensure that neither of you defies your separation agreement.
Either party could not consent to marriage because of mental incapacity or infirmity, or the influence of alcohol, drugs, or other substances.
One of the parties lacked the physical capacity to consummate the marriage through sexual intercourse within the first year and the other party did not know of the incapacity at the time.
Either party was less than legal age and the marriage was not confirmed by that party after they reached legal age.
One party entered into the marriage upon a fraudulent act or false representation of the other party.
One or both parties got married under duress by the other party, or a third party, whether or not the other party was aware of the duress.
One or both parties entered into the marriage as a jest or dare
The marriage is prohibited and void or voidable as provided in § 101 of Title 13, Chapter 15 of the Delaware Code (which outlines that relatives cannot be married).
Work It Out Together
This may seem the most obvious choice, but many couples do not realize that “working it out” is still an option once divorce proceedings have been filed.
At any point, you and your spouse can slow down and try again. Focus on repairing the root of your marital problems.
Seek Counseling
Individual and couples therapy are both ways that you and your spouse can seek the healing and repair necessary to help your marriage survive. Sometimes involving a third party can give you both a new perspective on the relationship.
Open Marriage
This is a risky choice, but in some cases can save a relationship. As long as both parties exercise honesty and consent, an open marriage may work to keep you together.
In a parenting marriage, a couple decides to stay married until their children become adults or finish their schooling. They feel it is in the best interest of their kids for the parents to stay together.
They may cease the romance part of their relationship and may even combine this with an open marriage, but the couple will continue to cohabit and raise their children together.
Key Takeaways
Whether you attempt an alternative to divorce or you go through with it and end your marriage, your choice is personal. Everyone must find the right path for them. In some cases, you can save a marriage. However, sometimes divorce truly is the answer.
Lauren Cook-McKay is the Vice President of Marketing at DivorceAnswers.com. She holds a Master’s Degree in Marriage and Family Therapy (MFT) from the University of San Diego and applies her training in private practice to helping couples struggling in their marriage. She believes there is hope in all marriages and strives to provide therapy to couples that will lead them back towards a loving marriage, or an amicable divorce that brings peace and closure.
