Delaware Divorce Procedures

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Delaware Divorce Procedures

Complete overview of Delaware divorce laws for people considering a Delaware divorce or filing a Delaware divorce with issues to be resolved about child custody, child support, visitation and alimony.

Delaware State Divorce Residency Requirements

In order to file your Petition for Divorce in Delaware, you must make sure the Family Court has jurisdiction over your case. The most common way spouses are eligible to use a specific court system is by meeting the residency requirements. Meeting the Delaware residency requirements is typically only a concern for a spouse who has recently moved or is planning to move in the near future. The filing requirements are as follows:

The Family Court of the State has jurisdiction over all actions for divorce and annulment of marriage where either petitioner or respondent, at the time the action was commenced, actually resided in this State, or was stationed in this State as a member of the armed services of the United States, continuously for 6 or more months immediately preceding the commencement of the action. The divorce may be filed in the county in which either spouse resides.

(Delaware Code – Title 13 – Chapters: 1504, 1507)

Since divorce is governed by state law, it is required that you meet specific residency requirements in order to file for a divorce in the state of Delaware. It is most common that people file for a divorce in the county in which they live. If you are unsure of whether or not you meet the Delaware residency requirements you can try contacting the Clerk’s office of the domestic relations or family law division of your county courthouse.

Delaware Grounds for Divorce

The Petition for Divorce is the initial document filed with the Delaware court. It is in this document that the filing spouse will request the court to terminate the marriage under certain specified grounds.

The Court shall enter a final decree of divorce as long as it finds that the marriage is irretrievably broken and that reconciliation is improbable.

A marriage is considered irretrievably broken by:

a) Voluntary separation by the parties; or
b) Separation caused by respondent’s misconduct; or
c) Separation caused by respondent’s mental illness; or
d) Separation caused by incompatibility between the parties.

Any effort smade to achieve reconciliation prior to divorce, even those that include 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.

(Delaware Code – Title 13 – Chapters: 1505)

Every divorce case that is filed in the state of Delaware must declare the grounds in which the divorce is to be granted. The grounds for divorce must be substantiated with evidence or testimony otherwise the court may dismiss the case. When you are petitioning the court for a divorce, or agreeing to a divorce, make sure that you completely understand the grounds and any potential legal repercussions.

Delaware Uncontested Divorce

This information is an overview of the uncontested Delaware divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those “do it yourself divorce” filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Delaware.

To file for divorce in Delaware, either spouse must have lived in Delaware for at least six months before the action begins. The same applies for a member of the military stationed in Delaware.

Grounds for divorce in Delaware are No-Fault, which is defined as an “irretrievable breakdown of the marriage and reconciliation is considered improbable…” This is demonstrated by:

a) voluntary separation;
b) separation caused by a spouse’s misconduct or mental illness; or
c) separation caused by incompatibility; and
d) living apart for six months because of incompatibility.

The spouse who files is called the Petitioner; the spouse who responds is called the Respondent. Actions are filed in Family Court in the county of residence of one of the spouses.

Delaware does not allow formal legal separations.

Under Delaware law, the couple must separate, they must not share the same bedroom “or have sexual relations with one another, except for attempts at reconciliation.” The couple may live in the same house, however.

In Delaware, when the Respondent contests a divorce petition, the action is automatically scheduled for a hearing because the divorce is contested. If the Respondent fails to file an Answer with 20 days of receipt of the divorce papers, or if he or she agrees to the request for divorce, the action is uncontested. In this event, the Petitioner may request the court to decide the action based on what is called “solely on the papers” that have been filed, which means without the spouses appearing in court for a hearing; or he or she may ask the court to decide after a hearing, which the Petitioner must attend and the Respondent may attend.

To file for a divorce, the Petitioner must file the following:

a) A Petition for Divorce/Annulment, which identifies the spouses, the children, the relief requested, and specifies the type of divorce proceeding requested if the action is uncontested: 1) “solely on the papers” and without a hearing, or 2) with a hearing decided by a Commissioner;
b) An Information Sheet Form, which identifies the particulars of the case, including whether or not the Petitioner is filing for custody, visitation, support or Protection from Abuse;
c) A Division of Public Health/Vital Statistics Form, which records the particulars of the action for state records;
d) A certified copy of the marriage certificate, which must be obtained from the Division of Vital Statistics in the jurisdiction where the marriage happened;
e) A Request for Notice Form, which is used to effect a Summons and Petition upon the Respondent;
(This form makes provision for the Respondent to receive a copy of the Petition without service of a Summons and enter an Appearance, which means he or she agrees with the action. It also has a provision to 1) serve notice of the action by certified mail, return receipt requested and 2) for Service by Publication in the event that a missing spouse cannot be located by mail.)
f) An Affidavit of Children’s Rights, which must be filed if the spouses are the parents of children under 18.
g) A Separation Agreement, which, when negotiated by the spouses, spells out the terms and conditions of the property division, its assets and liabilities and which is signed by both spouses in the presence of a notary;
h) A Stipulation to Incorporate the Separation Agreement Form, which incorporates and enforces the separation agreement as part of the final divorce decree;
i) An Affidavit that a Party’s Address is Unknown Form, which is filed only when the Respondent’s address is not known;
j) An Affidavit that a Party’s Social Security Number is Unknown Form, which is filed only when the Respondent’s Social Security Number is not known;
k) Waiver of Rights under Servicemembers’ Civil Relief Act, which is filed only when the Respondent is in the military and agrees to waive his or her protection from civil litigation under the act.

When the Petitioner and Respondent are parents of children under 18, both must complete a Parent Education Class and then file:

> Certificates of Completion of Parent Education Class, which are given at the Family Court Resources Center in each of Delaware’s four counties.

After the Respondent has been served with Petition and after the couple have been separated for at least six months (except in the case of when the ground is misconduct, when there is no time limit) and after the couple have filed the Certificates of Completion of Parent Education, the Petitioner receives a Notice that the case is trial ready.

If the Petition is marked uncontested, the Petitioner files a Notice of Trial-Readiness and he or she had 20 days to file the following:

a) Request to Proceed without a Hearing, which must be filed with:
b) An Affidavit in Support of Request to Proceed without a Hearing, which certifies that the spouses have “not occupied the same bedroom or had sexual relations with each other in the past 30 days.”

After the Request to Proceed without a Hearing and the Affidavit in Support of Request to Proceed without a Hearing have been filed, the case papers are forwarded to a Commissioner, who decides whether or not to grant the Petition without a hearing based “solely on the papers,” and the spouses receive copies of the Order and Decree of Divorce. If he or she does not grant the petition, he or she may schedule a hearing to take testimony.

If the Petitioner elects to proceed with a hearing, or if the Respondent contests the divorce, the Petitioner receives a Notice of Hearing. He or she may elect to proceed on the papers by filing a Request to Proceed without a Hearing anytime at least seven days prior to the scheduled hearing and by notifying the other spouse.

If the hearing is held, the Petitioner must present an Affidavit of Non-Military Service, which is completed only if the Respondent is not in the military.

As in the case of a divorce solely on the papers, a divorce with a hearing cannot be granted if the spouses “have occupied the same bedroom or had sexual relations with each other within 30 days of (the) hearing.”

Likewise, if the divorce is granted, the Commissioner forwards a copy of the Order and Decree to each spouse. If the parties request the court to retain jurisdiction over “ancillary matters,” such as support, they receive a document detailing this.

These ancillary matters may include property division and/or alimony. If this is the case, the Petitioner has 30 days from the date of the Divorce Decree to file a Rule 16 (c) Financial Report Form. Both parties must complete the same form. For purposes of this form, the Petitioner is the person who completes the form first, even if he or she is not the person who filed the Petition for Divorce, and the Respondent is the person who completes the form second. After the Petitioner completes the Rule 16 (c) form, he or she must complete an Affidavit of Mailing, swearing under oath that he or she has mailed the original to the Respondent.

After the Respondent receives the original Rule 16 (c) form, he or she has 30 days from the date of mailing to respond. The Respondent must then file the original notarized Rule 16 (c) form with the court and forward a copy to the Petitioner or his or her attorney. After doing this, he or she must also file an Affidavit of Mailing, swearing under oath that he or she has mailed the original to the Petitioner.

The Rule 16 (c) form is very long, and it takes quite some time to complete. Both parties are well advised to make copies of the completed form.

Failure to complete the form or attempts to secret assets means the court can impose sanctions, including the former spouse’s attorney costs, or it can accept one spouse’s information and ignore any other information, or it can enter a default judgment against one spouse. This can take the form of a Default Judgment or Dismissal. If this happens, the spouse seeking the default must prepare a Form of Order.

If the former spouses request the court determine property division, alimony, counsel fees, court costs “and/or any other ancillary relief allowed under Title 13 § 1507 (f),” a hearing will be held after the Rule 16 (c) Financial Report Form is completed. Before the hearing the court may request additional information at a pre-trial conference. Failure to comply with the court’s request may result in the same penalties listed above.

Delaware Simplified Divorce Procedures

The respondent may file an appearance which will fulfill the requirement of service of process. In addition, a sample Petition for Divorce is contained in Delaware Code Annotated; Title 13, Chapter 1507.

[Delaware Code Annotated; Title 13, Chapter 1508].

Each state has its own unique filing procedure. When filing for divorce in Delaware, you must adhere to the strict filing guidelines and prepare and submit the appropriate mandatory divorce documents to the county court. You will discover that some documents may be provided by the Delaware Legal System and others must be constructed on a case-by-case basis containing certain information and criteria to adhere to the Delaware Laws and the filing requirements.

Delaware Property Division Factors

In Delaware, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the Family Court within the Decree of Divorce.

Delaware is referred to as an “equitable distribution” state. When the parties are unable to reach a settlement, the Family Court will take the following approach to dividing the assets; First, it will go through a discovery process to classify which property and debt is to be considered marital. Next, it will assign a monetary value on the marital property and debt. Last, it will distribute the marital assets between the two parties in an equitable fashion. Equitable does not mean equal, but rather what is deemed by the Family Court to be fair.

The court shall, upon request of either party, equitably divide, distribute and 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:

a) The duration of the marriage;
b) Any prior marriage of the party;
c) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties;
d) Whether the property award is in lieu of or in addition to alimony;
e) The opportunity of each for future acquisitions of capital assets and income;
f) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker, husband, or wife;
g) The value of the property set apart to each party;
h) 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;
i) Whether the property was acquired by gift;
j) The debts of the parties; and
k) Tax consequences.

(Delaware Code – Title 13 – Chapters: 1504, 1513)

Since Delaware is an “Equitable Distribution” state, all marital property will be divided in an equitable fashion according to the court unless agreed to otherwise by the divorcing spouses. What does “equitable” mean? Equitable can be defined as “what is fair, not necessarily equal.” To automatically believe the marital property would be divided 50-50 would be a wrong assumption in any equitable distribution state.

Delaware Spousal Support/Maintenance/Alimony Factors

In Delaware the support payments (if any) can certainly influence how the marital property distribution is awarded, which is why it can become a very intricate part of the final outcome of any divorce. Keeping this in mind, if you and your spouse are unable to reach and agreement on this issue, the Family Court will order support from one spouse to the other on a case-by-case basis as follows:

Without regard to marital misconduct, the court will consider of all of the relevant economic factors, including, but not limited to:

a) The financial resources of the party seeking alimony;
b) The time necessary and expense required to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment;
c) The standard of living established while married;
d) The length of the marriage;
e) The age, and health condition of both parties;
f) Any financial or other contribution made by either party to the education, training, vocational skills, career or earning capacity of the other party;
g) The ability of a party to pay support;
h) Tax consequences;
i) Whether either party has foregone or postponed economic, education or other employment opportunities during the course of the marriage; and
j) Any other factor which the Court finds relevant.

(Delaware Code – Title 13 – Chapters: 1512)

Delaware Child Custody Factors

In Delaware, the Court shall consider all relevant factors in making a child custody decision including:

a) The wishes of the child’s parent or parents as to his or her custody and residential arrangements;
b) The wishes of the child as to his or her custodian(s) and residential arrangements;
c) The interaction and interrelationship of the child with his or her parents, grandparents, siblings, persons cohabiting in the relationship of husband and wife with a parent of the child, any other residents of the household or persons who may significantly affect the child’s best interests;
d) The child’s adjustment to his or her home, school and community;
e) The mental and physical health of all individuals involved;
f) Past and present compliance by both parents with their rights and responsibilities to their child
g) Evidence of domestic violence
h) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.

(Delaware Code – Title 13 – Chapters: 722)

In Delaware, as with all other states, the court will always be looking out for the best interests of the children. What you want or your spouse wants is not really relevant until the court says it is. Many parents go to custody hearings not realizing that they must portray themselves as the best custodial parent rather pleading to the court that they simply deserve the children. The court would much prefer the parents to decide who should have custody, but if they can’t, the court will do it for them.

Delaware Child Support Factors

Each parent has an equal duty to support any children. The following factors are considered in awards of child support:

a) the financial resources of the child;
b) the standard of living the child would have enjoyed if there had been no divorce;
c) the age and health of the parents;
d) the earning capacity of each parent;
e) the amount and sources of income of each parent;
f) the age, health, or station of the child;
g) the estate and needs of the child; and
h) the relative financial means of the parents.

[Delaware Code Annotated; Title 13, Chapters 501, 514, and 701].

Delaware child support is typically calculated by using a Child Support Worksheet. The worksheet will generate an appropriate Delaware child support obligation according to each spouse’s income and other relative numeric factors such as taxes paid and retirement contributions, etc.. Once this amount is determined it is essential to take a look at any appropriate Delaware child support deviation factors that may be applicable to the situation.

Delaware Grandparent’s Rights

Grandparent Rights to Visitation: Best interest of the child. Title 13, Section 728 (13 D.C.A. §728).

When Adoption Occurs: Adoption terminates all rights.

Child Custody Statutes: Best interests of the child considering:

1) wishes of the parents and the child;
2) interaction and interrelationship of child with parents, siblings, and other significant persons;
3) child’s adjustment to home, school and community;
4) mental and physical health of all persons involved. D.C.A. 13 §721. Must submit affidavit that Petitioner has been advised of the following children’s rights:

a) the right to a continuing relationship with both parents;
b) the right to be treated as an important human being, with unique feelings, ideas, and desires;
c) the right to continuing care and guidance from both parents;
d) the right to know and appreciate what is good in each parent without one parent degrading the other;
e) the right to express love, affection, and respect for each parent without having to stifle that love because of disapproval by the other parent;
f) the right to know that the parents’decision to divorce was not the responsibility of the child;
g) the right not to be a source of argument between the parents;
h) the right to honest answers to questions about the changing family relationships;
i) the right to be able to experience regular and consistent contact with both parents and the right to know the reason for any cancellation of time or change of plans; and
j) the right to have a relaxed, secure relationship with both parents without being placed in a position to manipulate one parent against the other.” See 13 D.C.A. §701 and13 D.C.A. §721 et seq.

Parents May Choose: Yes

Delaware Military Divorce Laws

A Delaware military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.

Military Protection From Delaware Divorce Proceedings

There are laws set up to protect active duty military members against being held in “default” from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.

Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local Delaware court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.

Serving an Active Military Spouse

The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a Delaware court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.

Residency and Filing Requirements

The typical military divorce filing requirements are as follows:

a) You or your spouse must reside in Delaware
b) You or your spouse must be stationed in Delaware

Grounds for Delaware Military Divorce

The grounds for a military divorce in Delaware are the same as a civilian divorce.

Dividing the Property

Along with the normal Delaware property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.

The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.

Child Support and Spousal Support

In Delaware, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal Delaware child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.

Delaware Child Support Guidelines

The Delaware child support guidelines “at a glance” provides a quick reference to what applicable child support laws are considered and/or not considered when determining the appropriate Delaware child support order.

Delaware Child Support Guidelines

> Income Share Model: NO
> Percent of Income Model: NO
> Worksheets Available: YES
> Extraordinary Medical Expenses Add on: YES
> Childcare Add on: YES
> Secondary Education Support: NO
> UIFSA: YES

Delaware Child Support Definitions

Introduction

(excerpted from Child Support Instructions by the Family Court of Delaware)

The Family Court of the State of Delaware has established the Delaware Child Support Formula under Civil Rule 52(c). This formula outlines the procedure for determining child support awards in the state of Delaware. The formula is
based on the following principles:

Each parent is entitled to keep a minimum amount of income for their basic needs.

The child(ren)‘s basic needs are taken care of before the parents may retain any additional income.

If income is available after the primary needs of the parents and child(ren) are taken care of, the child(ren) is (are) entitled to share in any additional income of the parents.

In determining each parent’s child support obligation the Court considers each parent’s ability to pay. Ability to pay includes: the health, income and financial circumstances and earning capacity of the parties, the manner of living to which the parties have been accustomed when they were living under the same roof and the general equities inherent in the situation are also considered.

Definition of Income.

Monthly Gross Earned Income: Monthly Gross Earned Income includes income from salaries, wages, commissions, and bonuses; and income from self employment. Document all earned income with the most recent tax returns and W-2 Forms.

Monthly Gross Other Income: Monthly Gross Other Income includes but is not limited to dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, veteran’s benefits, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, gifts, prizes, and alimony or maintenance received. Expense reimbursements or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business should be counted as other income if they are significant and reduce personal living expenses. Such payments might include a company car, free housing, or reimbursed meals.

Note: Any social security disability benefits as well as pension/disability benefits issued by private corporations paid directly to a minor child (included in this support action) on behalf of a disabled parent shall be added to the disabled parent’ s income. That parent will then receive a dollar-for-dollar credit off of the support obligation for these payments received by the child. When a child receives social security disability benefits on his/her/own behalf, they shall be counted as income of the custodial parent or the parent receiving the benefits on behalf of the child(ren). Social Security benefits of children who are not included in the child support order will not be included.

Exclusions from income: Temporary Assistance to Needy Families (TANF), Supplemental Security Income (SSI) if it goes to the parents, and Food Stamps (FS). Attributed Income: When an able parent is not working full time or is working below full earning capacity, determine why there is a limitation on earnings. If the obligor has voluntarily chosen to earn less than his/her capacity the Court will attribute income.

Deductions from Income.

Medical Insurance. the cost of monthly medical insurance premiums paid by either parent, regardless of persons covered by the policy.

Qualified Retirement Plan. the amount deducted for pension or, if the employer offers no pension plan, voluntary contribution to a 401(k) or similar IRS approved retirement plan, up to 3% of gross income.

Union Dues.

Other. the monthly amount of any court ordered alimony payments to the other parent, and if not already deducted from gross income, allowable business expenses if the person is self-employed or required by his/her
employer to purchase supplies etc.

PRIMARY SUPPORT NEED

The Court has established minimum levels of income needed to support one or more children. This primary support allowance is added to any work related child care expenses. Each parent’s share of the child(ren)‘s primary support need is based on each parents share of net income available.

Monthly Child Care Expenses. the actual Monthly Child Care Expenses that are the result of a parent working. Document these expenses with receipts from payments for care. No hypothetical or attributed child care costs are permitted.

Other. the other necessary monthly expenses incurred because of special needs of the child(ren).

STANDARD OF LIVING ADJUSTMENT (SOLA)

When there is income available after the parents have met their own and any of their dependents primary support needs, the SOLA adjustment is made. SOLA is designed to give the child(ren) a share in each parent’s economic well
being similar to what the child(ren) would have received if the parents had remained together.

Delaware Divorce Definitions

This collection of definitions will help clarify some unique characteristics to the Delaware Divorce laws, process and paperwork which is filed with the court.

Filing Party Title:
Petitioner

The spouse who will initiate the Divorce by filing the required paperwork with the court.

Non-Filing Party Title:
Respondent

The spouse who does not initiate the Divorce with the court.

Court Name:
The Family Court of the the State of Delaware, In and for __________ County

The proper name of the court in which a Divorce is filed in the state of Delaware. Each jurisdictional court typically has a domestic relations or a family law department or division.

The state run office devoted to enforcing existing child support orders and collecting any past due child support.

Document Introduction:
In Re the Marriage of:

The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.

Initial Divorce Document:
Petition for Divorce

The title and name of the legal document that will initiate the Delaware Divorce process. The filing spouse is also required to provide the non-filing spouse a copy of this document.

Final Divorce Document:
Decree of Divorce

The title and name of the legal document that will finalize the Delaware Divorce process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.

Clerk’s Office Name:
County Clerk’s Office of the Family Court

The office of the clerk that will facilitate the Divorce process. This is the title you would address letters to or ask for when contacting the courthouse.

Legal Separation:

[Delaware Code Annotated; Title 13, Chapter 1508].

Property Distribution:
Equitable Distribution

The applicable Delaware law that will dictate how property and debt is to be divided upon Divorce.

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