DELAWARE DIVORCE BASICS AND OVERVIEW
|This is a divorce reference guide to understanding divorce in the state of Delaware. Each state has its own requirements, laws, and documentation, so we decided to gather it all in one location to make it easy and quick for you to find the information you need before, during and after your divorce.
- Time Frame: With a no-fault divorce, the divorce case is trial-ready after the spouses are separated for at least six months and the paperwork has been officially served.
- Where to File: Family court. "In the Family Court for the state of Delaware, in and for the _____________ County."
- State Statutes: Delaware Code Title 13 Chapter 15.
- Name of Action: Petition for Divorce.
- Name of Parties: Petitioner, the party who files; respondent, the other party.
- No-Fault or Fault and No-Fault Only: No-fault: irretrievable breakdown characterized by voluntary separation, separation caused by a spouse's misconduct or mental illness, separation caused by incompatibility; and living apart six months because of incompatibility.
- Primary Documents Filed: Petition for Divorce and Decree of Divorce.
- Physical Separation Required: 30 days before filing. "Temporarily sleeping in the same bedroom and resumption of sexual relations, shall not interrupt any period of living separate and apart, provided that the parties have not occupied the same bedroom or had sexual relations with each other within the 30-day period immediately preceding the filing date."
- Separation Time to File: Six months if grounds are incompatibility.
- Legal Separation Permitted: There is no legal separation in Delaware, but separation caused by mental illness is a general ground for divorce.
- Grounds: Irretrievable breakdown without hope of reconciliation.
- Residency Requirement: One spouse must be a resident of the state of Delaware for at least six months before filing for divorce.
- Mediation Required: When the divorce is contested, the court may delay the action for 60 days so the spouses can seek mediation. The court may also order a mediation conference, especially if child custody is being disputed.
- Counseling Required: No, but during the 60-day stay, the parties may also seek counseling if they desire.
- Parenting Classes Required: The court mandates that parents attend a certified parenting education course in cases where there are children under 18.
In Delaware all parents going through a divorce with a child under 18 must attend a parent education class. This is a six to eight hour program to help them better understand parenting during and after a divorce or separation. Each county court has its own program and sets its own fee, but the fee may not be more than $100 per parent (typically it is around $50). The requirement of the class is set forth in Delaware statute 1507 (h). The course is also mandatory for those who are a party to a custody or visitation proceeding, and not just parents (sometimes a third party is involved with custody). A certificate is issued upon completion, and it must be submitted to the court prior to the divorce being finalized. In a divorce case, if a certificate of completion is not received within 180 days of the date of the filing of the Petition for Divorce, the Petition for Divorce may be dismissed.
- Filing Fee: $160. (See DE Filing Fee Waiver Form)
- Where to File for Child Support: Assistance in child support enforcement can be had at the Delaware Division of Child Support Enforcement's in New Castle, Sussex, and Kent counties, which are open Monday through Friday from 8:00 a.m. to 4:30 p.m.
- Child Support Guidelines Model: Delaware works on the Melson formula, and considers both parents responsible for supporting the children.
In Delaware the court applies the Delaware Child Support Formula in determining child support unless applying the guidelines would be unjust or inappropriate, and it then deviates from the state guidelines they are considered not to be in the best interests of the child. Child support in Delaware is based primarily on a parent's net available income, which is the parent's monthly gross income minus taxes and deductions (including a self support allowance). The monthly gross income includes the parent's wages and salaries, commissions, bonuses, independent contractor income, dividends, severance pay, pensions, workers' compensation and other income that isn't subject to income tax. Taxes are federal and state taxes. Allowable deductions include medical insurance, pensions, union dues, disability insurance, any court ordered alimony payments to the other parent, and other allowable business expenses. The self-support allowance, which is an allowance of $1,110, is the minimum amount of income necessary for a parent to remain productive in a workplace. In Delaware, child support is based on the principle that after meeting the needs of both parents and children, the children are entitled to a share of any additional income of the parents. Support continues until 18 or, if child is in high school, 19 or graduation, whichever is first. Parents can certainly agree to provide support during college and also agree to an amount different than that is produced by the state guidelines. If a different amount is agreed upon, the court will have to approve it and will often compare it to the actual amount produced by the state guidelines.
- Property Division: Delaware is an equitable distribution state and uses the dual classification model. Property is either separate or marital.
- Appreciation of Separate Property: The appreciation of separate property is separate.
- Attendance at Hearing: Sometimes. A party may file an affidavit in Support of Request to Proceed with a Hearing or Request to Proceed without a hearing in support of a request to finalize the action without a hearing. If the request is not granted, one spouse must attend a short hearing.
- Fault Considered in Property Division: Marital misconduct is not a factor in the distribution of marital property.
- Waiting period after Divorce for Remarriage: None.
- Ways to Serve Spouse: Service of process is made by the Sheriff or by any person not a party to the action and over 18 and licensed as a process server. Process means delivering a copy of the Summons, Petition, and Affidavit to the respondent personally or by leaving copies at his or her house or usual place of abode.
- Divorce Records: The Delaware Office of Vital Statistics Division of Public Health
The Prothonotary in the county where a divorce was granted maintains the records of divorce dating before 1975. For divorces granted after 1975, the parties needing a copy of a Divorce Certificate or a Decree of Divorce should contact Family Court in the county where divorce was filed and finalized. Certified copies are not available from the State office. A copy of the actual Decree of Divorce will contain the terms of the settlement, which may or may not be needed. If one is looking to only prove that the divorce took place, then a certified copy of the Divorce Certificate would be adequate. The Office of Vital Statistics Division of Public Health is located at 417 Federal Street, Dover, Delaware 19901.