Delaware divorce details
Uncontested VS Contested Divorce in Delaware
There are two main types of divorce - Contested and Uncontested.
As Delaware is a mixed state, contesting of a case typically concerned to some blaming or misconduct of the one spouse. A contested divorce occurs when the spouses’ wish to divorce isn’t mutual and when the Respondent (a non-filing spouse) does not agree with the terms of the received Petition. A Contested divorce, usually, is a time-consuming and stressful process. You have to participate in a number of court hearings, and also, you need a lot of money in order to hire an attorney to represent you before the court.
In opposite, an Uncontested divorce can be finalized without an attorney if you wish, and even within a month. It’s no surprise that nowadays, in the world of rush, this option is increasingly popular nationwide.
Uncontested Divorce in Delaware
The main condition of an Uncontested divorce is the spouses’ common opinion that their marriage is irreparably broken. Also, they should be ready to discuss all the most complicated terms of their divorce and post-divorce life in order to create a mutually beneficial Marital Settlement Agreement. Once approved by the Judge, this agreement replaces the orders of the court, it has the same legal force.
Moreover, In Delaware, if your Settlement Agreement is already prepared you may finalize your uncontested divorce either with the court hearing or without it. In order to waive the hearing you should file “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 (the spouses must live separate and apart within 6 months before filing the petition) is more popular now, you still may file for divorce based on fault grounds, so-called grounds of misconduct.
In Delaware, fault grounds for divorce are following:
- Physical or psychological abuse.
- Willful desertion.
Fault grounds for divorce don’t demand any pre-filing waiting period or separation, however, you must present the convincing evidence of your spouse's misconduct before the court.
Delaware Residency Requirements to File for Divorce
To be eligible to file for divorce under the Delaware jurisdiction the couple must meet the 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 either in your county or in the county where your spouse resides.
How to File for an Uncontested Divorce in Delaware?
Your divorce case may demand some specific documents or efforts, and it’s may be hard to predict the whole process until it started. However, here are the main stages which form the process of uncontested divorce in Delaware:
- Make sure you meet the residency requirements and are eligible for a no-fault divorce (you and your spouse are separated for 6 months).
- File the divorce paperwork in your local Family Court and pay a filing fee.
- Serve your spouse with the copies. He/she officially has 20 day to respond the petition and agree with its terms. The divorce is also considered to be uncontested if he/she fails to answer at all.
- Attend the final hearing or waive it. If you have a good Settlement Agreement you may ask the court to grant a divorce based solely on all of your papers, or you may attend a brief hearing (as it occurs in the most states). Your spouse may be there but he/she is not required to be present. The court issues a decree of divorce and the case is finalized.
Do-It-Yourself Divorce in Delaware
DIY divorce means that you are ready to represent yourself before the court, select, complete, and submit the correct papers without the help of an attorney, and work with the Settlement Agreement jointly with your spouse. Do-it-yourself divorce is a no-fault and uncontested one.
Although DIY divorce helps to save a lot of money on lawyers’ fees, as a filing fee is rather low in Delaware and a simple divorce can be really inexpensive, the desire to save money shouldn't be your only reason. You should think in advance about whether you can cope with it. Whether your case is simple enough? Whether your spouse is ready to negotiate honestly and friendly?
If you decided to arrange a DIY divorce don’t ignore an option of mediation or a help of online-divorce companies - it may make the process easier and for less money than lawyers assistance.
How Much Does an Uncontested Divorce Cost?
A cost of uncontested divorce typically starts with a filing fee, which is $165 in the state of Delaware. A filing fee is a mandatory payment for divorce, which is charged to underwrite the cost of a court system. Among other payments referred to the uncontested divorce may be: serving fees, cost of mediation, online-divorce fees, and even attorney flat fees, if you decided to seek for assistance at your uncontested case.
How Long Does it Take to Get Divorced in Delaware?
If you meet the necessary residency requirements, an uncontested divorce in Delaware can be rather quickly processed from the time of filing the petition. It’s all depend on different circumstances of your case, and whether you requested a hearing, and whether you had a settlement agreement in advance, but, in a favorable situation, an uncontested divorce in Delaware can be finalized within 3 weeks. On average, the needed time varies between 30 and 90 days.
Papers & Documents You Need to Get a Divorce in Delaware
You may not have to file all of these papers (or vice versa, maybe you'll need some additional forms), but here is the list of main divorce forms in Delaware:
- 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.
...And if you have to settle the custody and support issues, you’ll 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).
How to Serve Your Spouse in Delaware
Once filed the Petition for divorce you receive the Summons - the paper which must be handed to your spouse along with the copy of the petition to notify him/her about the case starting.
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 provides your spouse’s contact information, and the court is automatically responsible to hand the paperwork to your spouse.
If your spouse is out of state, the court will serve him/her by certified mail, and, in such a case, you will need to pay for the publication of the divorce notice in a newspaper.
Online Divorce in Delaware
If you want to make your divorce easier and feel yourself more confident even though you don't hire an attorney to solve all the issues for you, an online divorce can be a really good choice.
What they call online divorce is actually the divorce forms preparation online. However, this part is essentially important, speaking of an uncontested divorce. You have to select the correct forms, taking to account your case, and county rules’ peculiarities. It happens, that the simple cases proceedings delay for months just because of incorrectly filled forms. Online divorce service like ours guarantees that you can avoid such a failure.
Having some basic data about your case, we are able to customize all the necessary papers according to your unique circumstances and complete them. You can minimize your court visits and save some precious time and nerves.
Rules for Child Support and Visitation in Delaware
Due to the Delaware family law, the frequent contact with both parents is in the best interest of the child unless the court came to the opposite conclusion.
Typically, one parent has custody (and the child lives with this parent), and the non-custodial parent has visitation rights. The parenting time & visitation schedule may be arranged by the parents themselves or by the court.
Along with it, there is a concept of a legal custody. Legal custody refers to the decision-making power of each parent concerning to all important changes in the child’s life. Legal custody can be both sole and joint. But, even if only one parent has legal custody, the other parent still has a right to know about child’s health conditions, schooling and some other aspects of the life. If the legal custody is joint, parents have to consult with each other about their decisions.
As for child support, it’s assumed that both parents are responsible to support their child, but only the non-custodial parent makes the regular payments as he/she can’t contribute during everyday life.
Child support is calculated with the Child Support Formula, that takes into account both parents’ income and reasonable needs of the child. Usually, parents participate in the special mediation conference, and Family Court mediator helps the couple to estimate an amount of a child support and reach an agreement on this issue.
Rules for Spousal Support in Delaware
Spousal Support, or Alimony, is a payment from the one former spouse to the other, established by the court or premarital agreement. Either spouse can ask for a spousal support regardless of gender, but you are eligible for an alimony only if you earn less than your ex-partner and have evidence that you really need this support, having no ability to be self-sufficient. Alimony is not about punishment or enrichment in Delaware, it's about covering the reasonable needs of the party who lacks the property or appropriate employment.
There are different types of a spousal support. In Delaware, it can be:
- Interim alimony. A spousal support that is being 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, providing themselves.
- Long-term alimony. Length of these payments varies greatly according to the length of the marriage. For the marriages which were over 20 years, even the permanent alimony can be awarded. As for shorter marriages, a spousal support can't be awarded for longer than a half of the marriage term.
Deciding a spousal support the Judge considers numerous factors, so it’s not easy to gain an alimony. Besides the length of the marriage, among the significant factors are each spouse’s age, physical and emotional health condition, each spouse’s earning capacity, as well as a contribution to the other party’s professional improvement, and so on.
Division of Property in Delaware
Delaware belongs to the states of equitable distribution of property. This means that all the marital property of the spouses must be divided in a fair way, but the proportions may differ (not necessary equal 50/50 split).
Dividing the marital property the court considers plenty of factors:
- Age, health condition.
- Employability, earning capacity, income.
- Special needs.
- Each party's contribution to the acquisition and increasing the value of a marital property (both as "breadwinner" and "homemaker").
- Contributions to any wasting of marital property
… and other, depending on the circumstances.
Separate property of the spouses is not subject to division, so it’s very important to determine what of the property is marital and what is not.
Separate property includes all that each party had prior to marriage as well as all that was purchased/exchanged for such property, personal gifts and inheritances given to the one spouse (but not the gifts from the other spouse), and any property that is considered to be separate due to the valid agreement.
Division of Debt in Delaware
All the marital debts (mortgages, car loans, credit card debts, and other) must be also assigned under the same equitable division principles.
The spouses may divide the debts by themselves and include this decision into the Marital Settlement Agreement, or entrust this issue to the court.
Divorce Mediation in Delaware
Divorce Mediation is kind of an alternative to litigation. During the mediation session, the spouses decide the same issues as at the trial, but they can speak to each other directly, without attorneys. Mediator is the guide of this process, this specialist helps the parties to negotiate constructively and find the decision that could be favorable for both of parties.
In Delaware, a mediation conference may be ordered by the court, especially if there are children of the marriage, but generally, mediation is a non-binding option. It’s just a good choice for people who go through the uncontested divorce because the main aim of mediation is to reach an agreement and to make reasonable arrangements related to child custody, support, and property division.
How to Divorce a Missing Spouse in Delaware
If you don’t know your spouse’s address and so can’t provide the court with the necessary information to serve him/her, the Divorce by Publication occurs.
To begin the process you must file the “Affidavit that the Party’s Address is Unknown”. The court will publish the notice about your case in the local newspaper. You must pay a fee for this type of service. In Delaware, the fee for divorce publication varies greatly - from $25 on Kent county and $30 in Sussex County to $80 in New Castle County. After publication, your spouse is considered to be properly served with the divorce paperwork.
"Default Divorce" means that the divorce is finalized without the participation of a Defendant (non-filing spouse) as well as the considering of his/her interests.
The default judgment can be entered by the Family Court if the Defendant fails to respond the Petition or/and to file such an important form as "Ancillary Financial Disclosure Report" (or provides false information in this document).
Annulment of the Marriage in Delaware
While a divorce terminates the legal marriage, an Annulment declares that the particular marriage wasn’t legal at all, that it’s void and never existed in the eyes of the law. Surely, an annulment can’t be granted just because of the mutual wish of the parties.
Every state has a list of marriage types, that are considered to be void due to the certain conditions. In Delaware, these 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 annulment not later than after 90 days).
- A hidden fact of an impotence (not later than a year after you learned this)
- Underage marriage without the parent’s/court consent (not later than a year after the ceremony).
- Consent to marriage obtained by fraud (not later than 90 days after you learned truth).
- Consent to marriage obtained by duress, extreme coercion, force (not later than 90 days after).
- One or both spouses agreed to marry only as a joke or a dare (not later than 90 days after you learned about it).
- Marriage prohibited by Delaware law (bigamy, polygamy, incest). You may file for annulment anytime.
Legal Separation in Delaware
Unlike most other states, you can’t file for a Legal Separation in Delaware. Here, Separation is just a mandatory part of a divorce action, meaning the spouses must live separate and apart for 6 months to be eligible to file for divorce.
Separation Agreement which can be signed by the spouses in order to divide their property and liabilities - is also the part of the divorce process, as in Delaware you can file only for a no-fault divorce based on 6 months separation.
Same-Sex Divorce in Delaware
The same-sex marriage is recognized in Delaware since 2013. Surely, the same-sex divorce comes along with it. Nowadays, all the married couples regardless of sexual orientation have the same rights and liabilities and must to take all the same steps to obtain a divorce.
The main difficulty still noticed by the same-gender couples and lawyers is that “The longevity of the estate is not represented by the duration of the marriage,” in other words, plenty of couples had 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 most of same-gender partners prefer to create a premarital agreement.
Military Divorce in Delaware
As for military spouses, there are some additional features and laws that complement the Delaware Family law.
- Thus, if you or your spouse is a military member you may be eligible for divorce under the Delaware jurisdiction both by 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 for everyone.
- All the military spouses are protected from the default divorce. They are allowed not to respond while they are on duty. The divorce proceeding will be postponed for this period + additional 60 days.
- The federal law forbids to divide the military member’s retirement payments unless the spouses have been married longer than 10 years while he/she has been an active duty military.
How to Divorce a Spouse in Jail in Delaware
There are no special rules on how to divorce an inmate spouse - grounds, residency requirements and other aspects are the same as for regular case. Your spouse as well must be personally served with the divorce paperwork. If your case is uncontested you may waive the hearing by filing the “Request to Proceed Without Hearing”, so, both of you may not attend the court for the testimony.
Delaware Divorce Filing Fee
Divorce filing fee is a mandatory basic payment that covers the cost of court services. It’s charged by the Supreme Court at the time you file your initial divorce paperwork.
In the state of Delaware, a divorce filing fee is $165.
Can a Filing Fee Be Waived?
The answer is yes, a filing fee can be waived but only for indigent petitioners.
In Delaware, you should file the "Affidavit in Support of Application to Proceed in Forma Pauperis". This document clarifies your financial hardship to the court and can convince it that you really can’t afford to pay the fee. Along with the divorce filing fee, approval of this form results in the waiver of the fee for notice and publication.
How We Can Help
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