This is a complete guide to divorce in Delaware.
In this guide, we’ll address your burning questions – including some you didn’t even think to ask.
So if you want to make sure you have a lay of the land (and avoid the pitfalls), we’ve got you covered.
Let’s get started.
- What Are the Grounds for Divorce in Delaware?
- Legal Separation vs Divorce
- Annulment vs. Divorce
- Options for Getting a Divorce in Delaware
- What is the Process of Getting a Divorce in Delaware?
- Can I File for Divorce Without an Attorney?
- Can I File for Divorce Online?
- Can I Mail Divorce Papers?
- Refusing or Contesting a Divorce
- How Long Does a Divorce Take in Delaware?
- Expediting Your Divorce
- What is the Cost of a Divorce in Delaware?
- Canceling or Stopping a Divorce
- Contested vs Uncontested Divorces
- Fault-based vs No-fault Divorce
- Divorce Decree vs Proof of Divorce
- Bifurcated Divorce
- How Does Adultery Affect Divorce in Delaware?
- Changing Your Name
- Bonus: Recommended Resources for a Better Divorce
What Are the Grounds for Divorce in Delaware?
Delaware is a no-fault state. This means a divorce will be granted if it is “irretrievably broken” and “reconciliation is improbable.”
Although you are not required to cite the reason, Delaware courts will grant divorces that are characterized by voluntary separation or separation caused by:
- The respondent’s misconduct
- Mental illness
- Separation caused by incompatibility
- Living apart for six months because of incompatibility.
If you are seeking a no-fault divorce, you and your spouse must have been separated for at least six months before you can file.
If you’re filing for divorce because of some misconduct by your spouse, also called “fault-based” grounds, like adultery or abuse, you can file for divorce at any time.
Legal Separation vs. Divorce
In some states, a legal separation may take place as a means of loosening the bonds of marriage without formally ending the union. Couples sometimes choose legal separation for religious reasons, because divorce may be a conflict depending on their spiritual beliefs.
At other times, a legal separation may be a way to let a spouse keep health insurance and can provide tax benefits that only married couples can enjoy.
However, there is no provision for a legal separation in Delaware.
Annulment vs. Divorce
An annulment means a marriage can be declared null and void, as if it never happened. In Delaware, you can file for an annulment if you can prove one of the following grounds:
- Either spouse was unable to consent to the marriage when the ceremony was performed because of:
- mental illness
- the influence of alcohol, drugs, or other similar substances
- 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.
- Either spouse got married because of duress (force/threats) by the spouse or by another person.
- Either spouse got married as a joke or a dare.
- Either spouse was physically unable to sexually consummate the marriage and the other spouse did not know of the lack of physical ability at the time the marriage ceremony was performed.
- 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.
- The marriage is prohibited by law and therefore void. Some examples of void marriages include:
- 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.
In an annulment, assets still get divided, just like in a divorce. Children born in the marriage are still considered to be “legitimate.”
Options for Getting a Divorce in Delaware
The divorce process in Delaware will be driven by your personal circumstances, and the amount of conflict you have with your spouse. There are several possible ways you can go forward.
Do-It-Yourself divorce. This is known as an uncontested divorce. If you and your spouse can agree on all the issues in advance, you can file paperwork with the court stating this fact, and you will usually be granted a divorce in a short amount of time, the least amount of emotional stress, and the lowest possible costs.
You may be able to go through the entire process without appearing in front of a judge. However, if you have children in Delaware, you’ll need to appear briefly to answer a few questions.
Online divorce. This is similar to a DIY divorce, except that you rely a lot more on pre-printed forms and online services or attorneys to help you complete the required paperwork.
The automated approach can save a lot of money, but you need to be careful about making costly mistakes if you go this route. Also, you’ll still need to file your paperwork at a Delaware courthouse or submit paperwork by mail.
Divorce mediation. You meet with a neutral third party who helps you work through the areas of disagreement you have, such as property division, child custody and visitation, and related issues.
When you strike an agreement, you draw up a proposal and submit it to the court for approval. This is a quicker, cheaper, and less contentious route for many couples than going through a full-blown trial.
Collaborative divorce. This is an option for couples who still have a fair amount of cooperation and trust between them. Any disagreements are resolved respectfully and amicably using attorneys who are specially trained in collaborative law.
That is less costly than other forms of divorce. More importantly, it leaves decisions with the couple and not a judge. If collaboration fails, you can move forward with other types of divorce, but you will need to retain a different attorney if you do.
Litigation. Litigation is a traditional approach to divorce. You and your attorneys engage with your spouse and their attorneys in an attempt to negotiate a settlement before going to trial. About 95% of all litigated divorces end this way.
If you can reach an agreement through a negotiated settlement or arbitration instead of a trial, then you can save some time and aggravation.
What is the Process of Getting a Divorce in Delaware?
After you complete, file, and serve your paperwork, your spouse will have 20 days to respond to the complaint. They can either accept the settlement terms you have worked out or contest the terms.
This will determine your process going forward.
If the divorce is not contested, a judge will review your proposed terms. If they are acceptable, the judge will sign a final decree, generally within 30 to 90 days after the response has been filed.
You may not even have to attend a final hearing unless you have minor children. A judge will want to make sure you fully understand what your roles and responsibilities are as a parent.
If parts of the divorce are contested, then you will need to find a way to resolve those issues. This can be through mediation, collaborative divorce, arbitration, or in lieu of resolving those issues, a trial.
At a trial, the judge will listen to the evidence and testimony and make binding decisions. This may include things like alimony, child support and custody, a division of assets and debts, and other related issues.
Can I File for Divorce Without an Attorney?
Yes. Many couples in Delaware choose “pro se” representation, meaning they represent themselves in a divorce. This generally works well when couples trust each other and can work out issues amicably between them
But if you have disagreements, to protect your interests, you should hire an attorney.
Can I File for Divorce Online?
Not exactly. You can start the process of completing paperwork by using an online firm or by working with an attorney. But when it’s time to file your paperwork, you must do so in person or by mail, at one of the state’s Family Court locations.
Though you must file in person, there are some very helpful online services to assist in filling out your divorce paperwork. The best platform that I’ve found (after extensive research) is 3 Step Divorce – easy, fast, and affordable.
Can I Mail Divorce Papers?
When you are ready to file your paperwork with the Family Court in Delaware, you can do so in person or by mail.
If a defendant lives in Delaware, they must be served paperwork personally or by service by publication (posting a notice in a local newspaper). If the defendant lives out of state, the petitioner can request the court to notify that person by certified mail.
Refusing or Contesting a Divorce
In Delaware (or any other state, for that matter), you can’t refuse to get divorced but you can contest the terms under which the divorce takes place.
How Long Does a Divorce Take in Delaware?
Spouses must be separated for six months before they can legally divorce.
You qualify as separated if you meet one of the following conditions:
- the separation was voluntary
- the separation is due to your spouse’s misconduct or mental illness, or
- the separation is due to incompatibility.
The separation may be valid even if you are living in the same household, as long as you and your spouse don’t occupy the same bedroom and do not have sexual relations within 30 days before the court hears your case.
After the separation period, and when divorce proceedings are uncontested, a divorce can usually be finalized in 30 to 90 days, depending on the court’s current caseloads and backlog.
Expediting Your Divorce
You can speed up your divorce process in several ways.
Choosing an uncontested divorce is the quickest and cheapest route. Resolving your issues before going to court is a route that many couples take.
If you decide to contest some of the issues, the best way to expedite the process is to still try to be cooperative and negotiate fairly with the other party. Be responsive to requests for information, show up on time to all court dates and meetings, and decide what is really important for you so that you can narrow your focus to a few key concerns.
What is the Cost of a Divorce in Delaware?
Filing fees will vary depending on the type of petition you’re filing. To find out what the current fee is, go to the Delaware Family Court website or visit the Family Court Resource Centers in each courthouse.
Fees are payable in cash, by credit card, debit card, check, or money order. Your paperwork will not be accepted if you do not pay the filing fee.
You may also have to pay additional fees to have paperwork served on your spouse.
Canceling or Stopping a Divorce
If you’re the plaintiff in a divorce action, meaning you’re the one who filed the paperwork, you can file a motion to dismiss your case. This will effectively cancel your case.
Once your divorce has been finalized by a judge, there is no way to cancel, reverse, or stop it. You’ll have to get married again if you want to reconcile with your ex-spouse.
Contested vs Uncontested Divorce
A contested divorce means that you and your spouse do not agree on all the issues related to ending your marriage. You will have to negotiate or litigate the issues between you, costing you time, money, and aggravation.
An uncontested divorce means that you agree to all terms that you have worked out in advance with your spouse. This is the quickest, cheapest, and least stressful way to go through a divorce.
Fault-based vs. No-fault Divorce
Delaware is a no-fault divorce state. This means that you and your spouse have irreconcilable differences and there is no chance to get back together.
Some states allow for a fault-based divorce, meaning you can cite and prove a specific reason for a divorce, such as adultery, cruelty, abandonment, or other similar types of misconduct.
Divorce Decree vs. Proof of Divorce
In Delaware, a Divorce Decree is the final settlement document approved by a judge that details the rights and responsibilities of each party in a divorce. It has specific instructions about alimony, child support and custody, a division of property and debts, and other pertinent issues.
A proof of divorce is a certificate issued by the state that simply states you are divorced, as well as when and where it was finalized. No other details are given. In some cases, proof of divorce is required when someone wants to get married again or change back to their maiden name.
Bifurcation divides a divorce into two separate legal actions. You can get legally divorced immediately while leaving unresolved issues to be dealt with at a later time.
Judges in Delaware are very reluctant to grant bifurcated divorces. It creates judicial inefficiency and removes much of the immediacy of completing the divorce process.
How Does Adultery Affect Divorce in Delaware?
Adultery does not affect how alimony awards are determined in Delaware. Judges may not use any form of marital misconduct when deciding duration and amounts.
Adultery may be the reason you chose to end your marriage, but you can’t cite it as the reason when asking a judge to grant your divorce either.
Changing Your Name
You will be presented either an option to restore your former name or request a court order for changing names when preparing your divorce forms.
The name change will be granted as part of your divorce. You can choose to receive a separate court order to make your name change official, or you can have your name change recorded on the final divorce decree. Both of these documents are acceptable for all US agencies and organizations as evidence of your name change.
Just having a court order does not mean your name change has taken effect. You will need to contact all of your organizations to request your records are updated.
It takes a long time to reach out to each company and figure out what to send where, so we recommend using an Easy Name Change kit to cut out the 10+ hours of research and paperwork that follows.
Recommended Divorce Resources
There are a lot of divorce resources that make big claims. We’ve tested a bunch of them. Most fall short. A few stand above the rest.
These are the tools and resources we’re excited to share with you because we know they can help you have a better divorce.
If you’re looking for recommendations in any of the following areas, we’ve got you covered:
- Online divorce
- QDRO preparation to divide retirement plans and pensions
- Masterclass on ninja tricks to negotiating with a narcissist
- Co-parenting apps
- Personal finance and budgeting apps
- Best place to sell your engagement ring
- And a whole lot more
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