Delaware divorce details
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Uncontested VS Contested Divorce in Delaware
There are two main types of divorce - contested and uncontested.
A contested divorce is when the spouses’ wish to divorce isn’t mutual and the Respondent (non-filing spouse) does not agree with the terms of the Petition. A contested divorce is usually a time-consuming and stressful process. You have to participate in a number of court hearings. And this will cost a lot since you will have to hire an attorney to represent you in court.
On the other hand, an uncontested divorce can be finalized as soon as within a month and can be done with the help of an attorney. In a world where people appreciate convenience and speed, this option has become increasingly popular nationwide.
Uncontested Divorce in Delaware
The main condition of an uncontested divorce is that both spouses must have a mutual agreement that the marriage is irreparable. They should also be ready to discuss negotiate all the complicated terms of their divorce and post-divorce life in order to draft the Marital Settlement Agreement. Once approved by the court, this agreement replace the orders of the court and has the same legal force.
Moreover, if your Settlement Agreement is already prepared, you may finalize your uncontested divorce either with or without the court hearing. In order to waive the hearing, you should file the “Request to Proceed Without Hearing” and “Affidavit in Support of Request to Proceed Without Hearing”.
Grounds for Divorce in Delaware
Delaware is a mixed state. Although the no-fault ground of 6-months separation (spouses must live separate and apart within 6 months before filing the petition) is more popular now, you may still file for divorce based on fault grounds, also referred to as grounds of misconduct.
In Delaware, there are several fault grounds for divorce:
- Physical or psychological abuse
- Willful desertion.
Fault grounds for divorce don’t demand any pre-filing waiting period or separation. However, you must present enough convincing evidence of your spouse's misconduct before the court.
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Delaware Residency Requirements to File for Divorce
To be eligible to file for divorce under the Delaware jurisdiction, the couple must meet certain residency requirements. According to the Delaware Code, either spouse must be a resident of the state for at least 6 months before filing the petition.
You may file for divorce in the Family Court of either your county or the county where your spouse resides.
How to File for an Uncontested Divorce in Delaware?
Your divorce case may demand some specific documents or actions and it may be hard to predict how the entire process will be until it starts. However, there are several main stages that are true for all uncontested divorces:
- Make sure you meet the residency requirements and are eligible for a no-fault divorce (you and your spouse must be separated for 6 months).
- File the divorce paperwork in your local Family Court and pay the filing fee.
- Serve your spouse with the copies. They officially has 20 days to respond to the petition and agree with its terms. The divorce is considered to be uncontested if they fail to respond at all.
- Either attend the final hearing or waive it. If you have a well drafted Settlement Agreement, you may ask the court to grant a divorce solely based on it or you may attend a brief hearing (as it occurs in most states). Your spouse may attend, but they are not required to be present.
- The Court then issues a decree of divorce and the case is finalized.
Do-It-Yourself Divorce in Delaware
DIY divorce means that you are ready to:
- Select, complete, and submit all the required documents accurately and on time without the help of an attorney.
- Negotiate and draft the Settlement Agreement jointly with your spouse.
- Represent yourself before the court.
DIY divorce is a no-fault and uncontested divorce.
Although a DIY divorce may help you save a lot of money on lawyers’ fees, the filing fee is relatively low in Delaware and a simple divorce can be rather inexpensive. As a result, your desire to save money shouldn’t be the sole reason to have a DIY divorce. You should consider in advance on whether you will be able to complete all the steps of the divorce process by yourself without any issues.
If you decide to arrange a DIY divorce, do not ignore requesting help of mediators or online services as they make the process faster and easier.
How Much Does an Uncontested Divorce Cost?
The cost of an uncontested divorce typically starts with the filing, which is $165 in the state of Delaware. The filing fee is mandatory to file for a divorce and is charged to underwrite the cost of the court system. Other costs of an uncontested divorce include: serving fees, mediation fees, online services fee, or even an attorney fee. As a result, the cost of each divorce case will vary.
How Long Does it Take to Get Divorced in Delaware?
If you meet the necessary residency requirements, an uncontested divorce in Delaware can be processed rather quickly. Depending on the case, it can be finalized as soon as within 3 weeks. On average, the time ranges anywhere from 30 to 90 days.
How to Serve Your Spouse in Delaware
Once you file a Petition for divorce, you will receive the Summons. This must be served to your spouse along with the petition in order to notify them of the proceedings.
In Delaware, the serving process is very straightforward. When you file the documents with the clerk, you submit the special “Request for Notice” form. This form contains your spouse’s contact information and the court is automatically responsible to deliver the paperwork to your spouse.
If your spouse is located out of state, the court will serve them through certified mail. In such a case, you will need to pay for the publication of the divorce notice in a newspaper.
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Documents You Need to Get a Divorce in Delaware
Below is a list of the main documents you will need to file for divorce. Note that not all of them may be required as it depends on your case.
- Petition For Divorce/Annulment (442).
- Affidavit of Appearance in Divorce Action/Notice of Injunction (406).
- Stipulation to Incorporate Separation Agreement (443).
- Ancillary Financial Disclosure Report (465).
- Marital Settlement Agreement.
- Request for Notice (Divorce/Annulment action) (400).
- Decree of Divorce.
If you have to settle issues regarding custody and support, you will also need the following forms:
- Affidavit of Children Rights (279).
- Child Support Calculation (509).
- Custody Separate Statement (346).
- Financial Report for Spousal Support (16(a)SS).
Online Divorce in Delaware
Online divorce can be a good choice for those who want to have a smoother divorce process without the help of an attorney.
Online divorce is also commonly referred to as online divorce forms preparation. This step of the divorce process is highly important. Simple case proceedings may be delayed for months because of incorrectly filed forms. Online divorce services like ours guarantee that documents are prepared accurately so that you never encounter such a situation.
With just basic information regarding your case, we are able to customize all the required paperwork to fit your unique circumstances. With our help, you can minimize your number of court visits and save precious time.
Rules for Child Support and Visitation in Delaware
Delaware family law states that frequent contact with both parents is in the child’s best interests unless the court rules otherwise.
Typically, one parent has custody, and the non-custodial parent has visitation rights. The parenting time & visitation schedule may be arranged by the parents themselves or by the court.
Legal custody refers to the decision-making power of each parent concerning all important changes in the child’s life. Legal custody can be either sole or joint. But even if its sole legal custody, the other parent still has the right to know of the child’s health, schooling, and other important aspects of their life. If legal custody is joint, both parents have to consult with each other about their decision.
As for child support, it’s assumed that both parents are responsible.However, only the non-custodial parent is required to make regular payments as the custodial physically takes care of the child.
Child support is calculated using the child support formula which takes into account both parents’ income and reasonable needs of the child. Oftentimes, parents participate in the special mediation conference where the Family Court mediator helps the couple to calculate child support and reach an agreement regarding this issue.
Rules for Spousal Support in Delaware
Spousal Support, or Alimony, is payment made from one spouse to another, established by the court or premarital agreement. Either spouse can request spousal support regardless of gender. However, the one who is requesting must be earning less than the other and must be able to prove that they are in need of financial assistance in order to be eligible. Alimony is not a form of punishment or enrichment in Delaware, but about covering for the reasonable needs of the other party.
There are different types of spousal support in Delaware:
- Interim alimony. Spousal support that is paid during the divorce proceeding.
- Short-term alimony. This type is usually ordered to help the "lower earner" to make up for lost professional opportunities and start earning more to be able to start providing for themselves.
- Long-term alimony. Length of these payments varies greatly depending on the length of the marriage. For marriages that are over 20 years, permanent alimony may even be awarded. For shorter marriages, spousal support cannot be awarded for more than half the time of the marriage term.
Since the Judge takes into consideration many different factors when making a decision on spousal support, it is not always easy to win alimony. Aside from the length of the marriage, there are other items that are considered regarding each spouse such as their: age, physical and emotional health condition, earning capacity, and contribution to each other’s professional improvement.
Division of Property in Delaware
Delaware belongs to the states of equitable distribution of property. This means that all marital property must be divided in a fairly (this does not necessarily mean equal).
There are several factors the court considers when dividing marital property:
- Age and health condition of each spouse
- Employability, earning capacity, and income of each spouse
- Special needs of each spouse
- Each party's contribution to the acquisition and increase of value of a marital property (both as "breadwinner" and "homemaker").
- Contributions to the wasting of marital property
Separate property is not subject to division, so it is important to determine what is what is not marital property. Separate property includes all property, personal gifts, and inheritance that each spouse had independently prior to marriage.
Division of Debt in Delaware
All marital debts (mortgages, car loans, credit card debts, and others) are also assigned under the same equitable division principles.
The spouses may either divide the debts themselves and include their decision in the Marital Settlement Agreement or entrust this issue to the court.
Divorce Mediation in Delaware
Divorce mediation is a form of alternative to litigation. During the mediation session, the spouses negotiate and decide on the issues of divorce without the presence of attorneys. As the specialist, the mediator guides the couple through this process and helps them to negotiate constructively and come to an agreement that is favorable to both parties.
In Delaware, a mediation conference may be ordered by the court, especially if there are children. But in general, mediation is a non-binding option. It is recommended for those who have an uncontested divorce because it is aimed at helping the couple reach reasonable arrangements regarding important issues such as child custody, support and property division.
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How to Divorce a Missing Spouse in Delaware
If you cannot serve your spouse because you are unaware of their location, the court will allow you a Divorce by Publication.
To begin this process, you must file the “Affidavit that the Party’s Address is Unknown”. The court will publish the notice regarding your case in the local newspaper and you will have to pay a fee for this. In Delaware, the fee for divorce by publication can vary greatly - from $25 in Kent county to $30 in Sussex County and up to $80 in New Castle County. After publication, your spouse is considered to be properly served with the divorce paperwork.
"Default Divorce" is when a divorce is finalized without the participation of the Defendant (non-filing spouse) and their interests.
The default judgment can be granted by the Family Court if the Defendant fails to respond to the Petition and/or files the "Ancillary Financial Disclosure Report" (or provides false information on it).
Annulment of the Marriage in Delaware
While a divorce terminates a legal marriage, an Annulment declares that the marriage is void and never existed in the eyes of the law.
In Delaware, the grounds for an annulment are:
- One of the spouses lacked the capacity to consent to marriage because of mental problems or alcohol/drug intoxication (you need to file for an annulment no later than after 90 days).
- Impotence (no later than a year after it is discovered)
- Underage marriage without the parent’s and/or court’s consent (no later than a year after the ceremony).
- Consent to marriage obtained by fraud (no later than 90 days after it is discovered).
- Consent to marriage obtained by duress, extreme coercion, or force (no later than 90 days).
- One or both spouses agreed to marry only as a joke (not later than 90 days after it is discovered).
- Marriage prohibited by Delaware law (bigamy, polygamy, incest). You may file for annulment anytime.
Legal Separation in Delaware
Unlike most other states, you cannot file for Legal Separation in Delaware. Separation is just a mandatory step of the divorce process; the spouses must live separate and apart for 6 months to be eligible to file for divorce.
The Separation Agreement, which can be signed by the spouses in order to divide their property and liabilities, is also part of the divorce process as in Delaware, you can only file for a no-fault divorce after 6 months of separation.
Same-Sex Divorce in Delaware
Same-sex marriage and divorce have been recognized in Delaware since 2013. Nowadays, all married couples, regardless of their sexual orientation, have the same rights and liabilities to complete all the same steps to obtain a divorce.
The main difficulty still noticed by same-gender couples and lawyers is that “the longevity of the estate is not represented by the duration of the marriage”. In other words, many couples have accumulated marital property long before they got the right to legally marry. It can be complicated to allocate the assets in such a case, so many same-gender partners prefer to create a premarital agreement.
Military Divorce in Delaware
Military divorce in Delaware have some additional features and laws that complement the Delaware Family law:
- If you or your spouse is a military member, you may be eligible for divorce under the Delaware jurisdiction by both meeting the relevant residency requirements or being stationed in the state as a member of the armed services of the US. The grounds for divorce are the same as any other.
- All military spouses are protected from a default divorce. They are allowed to not respond while they are on duty. The divorce proceeding will be postponed for an additional 60 days.
- Federal law forbids the division of the military member’s retirement payments unless the spouses have been married for longer than 10 years while they were on active military duty.
How to Divorce a Spouse in Jail in Delaware
There are no special rules on how to divorce a spouse in jail as all the requirements are the same as for a regular divorce case. You must personally serve your spouse in jail with the required documents. If your case is uncontested, you may waive the hearing by filing the “Request to Proceed Without Hearing”.
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Delaware Divorce Filing Fee
Court filing fees are in addition to the cost of using DivorceFiller.com. This cost may vary by county. Please check with your local courthouse to determine the exact amount.
Can a Filing Fee Be Waived?
The filing fee may be waived for indigent petitioners.
In Delaware, you need to file the "Affidavit in Support of Application to Proceed in Forma Pauperis". This document clarifies your financial hardship in order to prove to the court that you are financially unable to pay for the fee. Approval results in the waiver of the divorce filing fee, fee for notice, and publication.
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