- Residency Requirements
- Grounds for Divorce
- Division of Property
- Spousal Support
- Child Custody
- Child Support
In order to file for divorce or annulment in Delaware, either you or your spouse must have lived in Delaware for at least 6 months or have been stationed in Delaware as a member of the military for at least 6 months prior to filing the petition.
Also, before filing for divorce, you and your spouse must be legally separated. 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 or have sexual relations with your spouse.
Grounds for Divorce
Delaware courts grant divorce whenever it finds that the marriage is irretrievably broken and that reconciliation is improbable.
A marriage is irretrievably broken where it is characterized by:
a) Voluntary separation; or
b) Separation caused by respondent’s misconduct; or
c) Separation caused by respondent’s mental illness; or
d) Separation caused by incompatibility.
Division of Property
The court shall equitably divide the marital property between the parties without regard to marital misconduct, in such proportions as the court deems just.
Marital property means all property acquired by either party subsequent to the marriage. Exceptions include property acquired by gift or inheritance that is in the sole name of the recipient spouse, and the increase in value of property acquired prior to the marriage.
All property acquired by either party subsequent to the marriage is presumed to be marital property regardless of whether title is held individually or by both parties.
A party may be awarded alimony only if he or she is dependent upon the other party for support; lacks sufficient property to provide for his or her reasonable needs; and is unable to support himself or herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that he or she not be required to seek employment.
Once it has been determined a party should be awarded alimony, the court will then decide how much alimony will be paid and for how long, without regard to marital misconduct. The following factors will be considered:
a) The financial resources of the party seeking alimony, including the marital or separate property apportioned to him or her, and his or her ability to meet all or part of his or her reasonable needs independently;
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 during the marriage;
d) The duration of the marriage;
e) The age, physical and emotional 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 the other party to meet his or her needs while paying alimony;
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 expressly finds is just and appropriate to consider.
A person is eligible to receive alimony for up to half of the term of the length of the marriage (i.e. a person could receive alimony for up to 5 years if they were married for 10 years). The exception is if a party is married for more than 20 years then there is no time limit to how long he or she can receive eligibility.
The court shall determine the custody for a child in accordance with the best interests of the child.
In determining the best interests of the child, the court shall consider all relevant factors including:
(1) The wishes of the child’s parent or parents as to his or her custody and residential arrangements;
(2) The wishes of the child as to his or her custodian or custodians and residential arrangements;
(3) 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;
(4) The child’s adjustment to his or her home, school and community;
(5) The mental and physical health of all individuals involved;
(6) Past and present compliance by both parents with their rights and responsibilities to their child;
(7) Evidence of domestic violence; and
(8) The criminal history of any party or any other resident of the household.
The court shall not presume that a parent, because of his or her sex, is better qualified than the other parent to act as a joint or sole legal custodian for a child or as the child’s primary residential parent.
Under Delaware law, both parents have a duty to support their child until the child is 18 years of age, or, if the child is still in high school, until the child graduates or turns 19 years of age, whichever comes first. A support action begins when one parent files a support petition, requesting the court to order the other parent to pay child support.
After the petition is filed, the court may order genetic testing to establish paternity, if necessary. Most parents seeking child support are represented by the Division of Child Support Enforcement (DCSE). In those cases, DCSE files all actions and pursues administrative remedies also. The court encourages all parents seeking support to explore the services of DCSE.
Delaware child support calculator.
http://courts.state.de.us/ (Delaware state court)