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Delaware Divorce Laws

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Delaware Divorce Laws

RESIDENCY REQUIREMENTS AND WHERE TO FILE:

To file for a divorce in Delaware, a person must have resided in the state for six months and be separated from the respective spouse (i.e. can't sleep in the same bedroom or have sexual relations). The paperwork may be filed in the county in which either spouse resides. [Based on Delaware Code - Title 13 - Chapters: 1504, 1507]

LEGAL GROUNDS FOR DIVORCE:

The Court shall enter a decree of divorce whenever it finds that the marriage is irretrievably broken and that reconciliation is improbable due to:

  • Voluntary separation.
  • Separation caused by respondent's misconduct.
  • Separation caused by respondent's mental illness.
  • Separation caused by incompatibility.

Bona fide efforts to achieve reconciliation prior to divorce, even those that include, 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 day the Court hears the petition for divorce. [Based on Delaware Code - Title 13 - Chapters: 1505]

SIMPLIFIED OR SPECIAL DIVORCE PROCEDURES:

If the person responding to the petition does not file an Answer within 20 days of receiving the Petition for Divorce OR files an Answer agreeing with the request for a divorce, the petition is uncontested, and the action will be tried without further notice by the Family Court. [Based on Delaware Code - Title 13 - Chapters: 1508]

LEGAL SEPARATION:

Under Delaware law, in order to be legally separated, you and your spouse must not share the same bedroom or have sexual relations with one another, except for attempts at reconciliation. You can still be separated if you live in the same house so long as you do not share the same bedroom with your spouse of have sexual relations with your spouse. [Based on Delaware Code - Title 13 - Chapters: 1505]

MEDIATION OR COUNSELING REQUIREMENTS:

In contested cases, the court may either rule upon the petition or continue the matter with the consent of both parties for further hearing not more than 60 days later. During this time, the parties may seek counseling, either with a qualified private counselor or an accredited counseling agency, public or private. No party who objects shall be forced to submit to counseling, and all counseling or interviews shall be confidential and privileged and only the fact that further efforts at reconciliation are impractical or not in the interest of the parties shall be reported to the Court.

In any case where there are living children of the marriage up to the age of 17, the Court shall order that the parties pay for and participate in a "Parenting Education Course" unless the Court, upon motion, determines that participation in the course is deemed not necessary. Parties do not have to attend the same course. [Based on Delaware Code - Title 13 - Chapters: 1507 and 1517]

PROPERTY DISTRIBUTION:

Delaware is an equitable distribution state, meaning that the property and debts acquire during the marriage will be distributed equitably. The court shall assign the marital property between the parties without regard to marital misconduct, in such proportions as the Court deems just after considering all relevant factors including:

  • The length of the marriage.
  • Any prior marriage of the party.
  • The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
  • Whether the property award is in lieu of or in addition to alimony.
  • The opportunity of each for future acquisitions of capital assets and income.
  • The contribution or dissipation of the marital estate, including the contribution of a party as homemaker, husband, or wife.
  • The value of the property set apart to each party.
  • The economic circumstances of each party at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the party with whom any children of the marriage will live.
  • Whether the property was acquired by gift (Property transferred by gift from 1 spouse to the other during the marriage is marital property.)
  • The debts of the parties.
  • Tax consequences.

Property acquired by an individual spouse by bequest, devise or descent or by gift, except gifts between spouses, provided the gifted property is titled and maintained in the sole name of the donee spouse, or a gift tax return is filed reporting the transfer of the gifted property in the sole name of the donee spouse or a notarized document, executed before or contemporaneously with the transfer, is offered demonstrating the nature of the transfer. [Based on Delaware Code - Title 13 - Chapters: 1513]

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