Divorce is a tough decision and often brings up several emotions. If you’ve made up your mind and are wondering about the next steps, you’re at the right place. In Delaware, the process of getting a divorce is straightforward. This article outlines the steps to getting divorced in Delaware, from meeting the residency requirements to filing for divorce and everything in between.
To file for a divorce online in Delaware, you or your spouse need to have lived in the state for at least six months before filing. Once you meet the residency requirements, you can file for divorce with the Family Court. You can file for the divorce alone, or jointly with your spouse. Delaware is a no-fault state, and you can file for divorce citing ‘irreconcilable differences,’ which means neither spouse is to blame for the divorce.
Residency Requirement in Delaware
Before a couple can file for divorce in Delaware, at least one of them must have been a resident of the state for six months before filing. This means that either you or your spouse must have been living in the state continuously for at least six months.
Additionally, to file for divorce in Delaware, either you or your spouse must live in the state at the time of filing. If you or your spouse has moved out of the state, you may still be able to file for divorce in Delaware if you meet certain requirements. These requirements may include having lived in Delaware at the time you and your spouse separated or having agreed to file for divorce in Delaware.
It’s important to note that residency requirements can vary depending on the type of divorce you are seeking. For example, if you are seeking a no-fault divorce, you must first live separately from your spouse for at least six months before filing. If you are seeking a fault-based divorce, such as one based on adultery or abuse, it may be possible to file immediately, but you will still need to meet the residency requirement.
Overall, meeting the residency requirement is an important first step in the divorce process. Without meeting this requirement, you will not be able to file for divorce in Delaware. If you are unsure whether you meet the residency requirement or have questions about filing for divorce in Delaware, it’s a good idea to consult with a qualified divorce attorney who can help guide you through the process.
Grounds for Divorce in Delaware
In Delaware, the grounds for divorce fall into two categories: fault and no-fault. Fault-based divorces are granted when one spouse can prove that the other spouse committed a serious violation of the marriage covenant. On the other hand, no-fault divorces reflect situations where neither party is at fault, which means the marriage has broken down irretrievably.
Fault-based Divorce
If a spouse files for divorce based on fault grounds, they must prove that the other party did something wrong. The most common fault grounds that spouses can choose from in Delaware include:
- Adultery
- Bigamy
- Abuse, whether it’s physical, emotional, or sexual
- Willful desertion or separation for at least one year
- An imprisonment term of at least two years
- Habitual substance abuse
It’s worth noting that filing for a fault-based divorce in Delaware can be a difficult burden to bear, as it requires a higher standard of proof.
No-Fault Divorce
Spouses who seek a no-fault divorce in Delaware typically need to wait for their separation period to be complete before filing. The separation period must last for at least six months, and both spouses must agree that the marriage is irretrievably broken. If the court determines that the marriage has broken down irretrievably, then it may grant the divorce.
In concluding this section, it’s essential to understand that, while fault-based divorces are legally valid, no-fault divorces tend to be quicker, less expensive, and less contentious. Regardless of the reason for your divorce, it’s essential to consult with an experienced attorney who can guide you through the legal process effectively.
Filing For A Divorce Petition In Delaware
To begin the process of getting a divorce in Delaware, you must first file a divorce petition with the court. This legal document outlines your desire to end your marriage and the reasons for doing so. Filing the divorce petition in Delaware is the crucial first step in a potentially lengthy and complicated process.
Here are the basic steps to filing a divorce petition in Delaware:
Step 1: Choose the Correct Court
In Delaware, you must file your divorce petition with the Family Court in the county where either you or your spouse currently resides. If you do not know where your spouse resides, you can file in the county where you live.
Step 2: Fill Out the Divorce Petition
The next step is completing the divorce petition form. This form asks for basic information about you and your spouse, such as names, addresses, and the date and location of your marriage. You will also need to provide grounds for the divorce, which can include irreconcilable differences, adultery, desertion, abuse, or insanity.
Step 3: File the Divorce Petition and Pay the Filing Fee
Once you’ve completed the divorce petition form, you will need to file it with the court and pay a filing fee. The fee varies depending on where you file and the type of case you have.
Step 4: Serve Your Spouse
After filing the divorce petition, you must legally serve your spouse with a copy of the paperwork. This involves having a third party, such as a sheriff or process server, deliver the paperwork to your spouse in person. Your spouse will then have 20 days to respond to the petition.
Step 5: Wait for a Response
If your spouse contests the divorce, the process can become more complicated and drawn out. However, if your spouse does not respond within 20 days, you can file for a default judgment. This means the court will grant your divorce based on the information you provided in your initial petition.
Filing for divorce in Delaware can be a complicated process, but with the right knowledge and resources, you can navigate it successfully. It is crucial to have the guidance of an experienced attorney to ensure that you complete all the necessary steps correctly and protect your rights throughout the process.
Serving the Divorce Papers in Delaware
After all the necessary documents have been filed, it’s time to make sure that your spouse receives a copy of the divorce papers. This step is known as serving the papers, and it is a crucial part of the divorce process. Here’s what you need to know about serving divorce papers in Delaware.
Who Can Serve the Papers?
In Delaware, anyone who is 18 years old or older (and who is not involved in the divorce case) can serve the divorce papers. This person must either hand-deliver the papers to your spouse or send them via certified mail with return receipt requested. After the papers have been served, the server must fill out an affidavit of service and file it with the court.
Alternative Methods of Service
If your spouse cannot be located, is avoiding service, or is out of state, you may be able to serve the papers by alternate means. This can include serving the papers to a family member or by publishing a notice in a newspaper. However, these methods are not always accepted by the court and can delay the divorce process.
Responding to the Papers
Once your spouse has been served with the divorce papers, they will have a certain amount of time to respond. In Delaware, the response time is typically 30 days. If your spouse fails to respond within this time frame, you may be able to obtain a default judgment.
What Happens Next?
After your spouse has been served and has responded (or failed to respond), the divorce can move forward. You will need to attend a hearing, where a judge will review the divorce agreement and make a final judgment. It’s important to note that the divorce process can take several months or even longer, depending on the specific circumstances of your case.
Serving divorce papers is one of the most important steps in the divorce process. It ensures that your spouse is aware of the divorce proceedings and has an opportunity to respond. By following the proper procedure for serving papers in Delaware, you can ensure that your divorce moves forward as smoothly and quickly as possible.
Mediation or Settlement Conference in Delaware
In some cases, mediation or a settlement conference may be beneficial to resolve issues with a divorce in Delaware. These options allow the parties involved to come to an agreement without having a trial in a courtroom.
Mediation
Mediation involves a neutral third party, the mediator, who helps facilitate discussion between the parties to come to a mutually agreed upon resolution. The mediator does not make any decisions or give legal advice, but rather acts as a facilitator to help both parties reach an agreement. Mediation can be particularly beneficial in cases where the parties want to maintain an amicable relationship and avoid a lengthy court battle.
Settlement Conference
Another option is a settlement conference, which involves both parties, their attorneys, and a judge. The parties meet with the judge to discuss their case and attempt to resolve any outstanding issues. While the judge can offer guidance, the parties ultimately make the decisions regarding their case. The goal of a settlement conference is to come to an agreement outside of court.
Both mediation and settlement conferences can be beneficial for divorcing parties as they often lead to quicker resolution of issues and cost less money than a trial. However, it’s important to note that these options may not work for all situations and parties should consider their specific circumstances before pursuing mediation or a settlement conference.
In Delaware, parties may be required to attend mediation or a settlement conference before going to trial. The court may also order mediation or a settlement conference even if the parties do not agree to it, as it’s considered a valuable tool for resolving disputes.
Overall, mediation and settlement conferences can be useful options for divorcing parties in Delaware to reach an amicable agreement outside of a courtroom.
Discovery and Trial in Delaware
Once the negotiation and mediation phases are complete, the next steps in the divorce process in Delaware involve what is known as the discovery and trial phases. During this time, spouses will need to provide evidence and have the chance to present their case in front of a judge.
Discovery
Discovery is the process where both parties exchange information about relevant matters in the case, including financial documentation, property ownership, income, and expenses. The purpose of this phase is to ensure both parties have a full understanding of the financial situation and to help reach a fair settlement agreement.
This process can involve requests for production of documents or interrogatories. A request for production of documents is a formal legal request to provide copies of documents, while an interrogatory is a formal written question requiring a written response from the other party.
Trial
If a settlement is not reached during the negotiation phase and after discovery, the case will proceed to trial. During trial, both parties will have the opportunity to present their case to a judge, who will ultimately make decisions about property division, spousal support, child custody, and any other outstanding issues.
During the trial, both parties can present evidence and witness testimony. It’s important to note that Delaware is an equitable distribution state, which means that property is divided based on what the court deems fair, rather than a straight 50/50 split.
It’s also important to keep in mind that trial can be a lengthy and costly process, and spouses may want to consider alternative dispute resolutions such as mediation or collaborative divorce before proceeding to trial.
In conclusion, the discovery and trial phases of divorce in Delaware can be complex and involved. However, with the help of experienced legal counsel, spouses can navigate these stages and hopefully achieve a favorable outcome.
Temporary Orders and Final Decree in Delaware
Once the parties have reached an agreement on the terms of their divorce, or if they cannot reach an agreement and the case proceeds to trial, the court will issue temporary orders and ultimately a final decree of divorce.
Temporary orders are orders issued by the court during the pendency of a divorce case that address matters such as custody, visitation, support, and property division. These orders remain in effect until the final decree of divorce is entered. Temporary orders can be obtained by either party filing a motion and requesting a hearing before a judge.
The final decree of divorce is the court’s final order, which dissolves the marriage and sets forth the respective rights and obligations of the parties. It can address issues such as custody, visitation, support, property division, and any other matter necessary to effectuate the dissolution of the marriage.
Once the parties have reached an agreement on all issues, they can submit a proposed final decree of divorce to the court for approval. If the court approves the proposed decree, it will sign and enter the decree, and the divorce will be final.
If the parties are unable to agree on all issues, the case will proceed to trial and the court will issue a final decree of divorce after considering all of the evidence presented at trial.
It is important to note that Delaware has a waiting period of 60 days after the filing of the divorce petition before the court can enter a final decree of divorce. This waiting period is designed to give the parties time to consider their decision to divorce and to attempt to resolve any issues that may arise.
In summary, temporary orders and the final decree of divorce are crucial components of the divorce process in Delaware. Temporary orders provide guidance on how the parties should conduct themselves during the divorce case, while the final decree of divorce sets forth the respective rights and obligations of the parties going forward.
Spousal Support in Delaware
Spousal support, or alimony, is a payment made from one spouse to the other to maintain the living standard they established during their marriage. In Delaware, if the court determines that spousal support is appropriate, it will consider factors such as the length of the marriage, each spouse’s earning capacity, and each spouse’s contribution to the marriage when making its decision.
The court may award several types of alimony, including temporary, rehabilitative, or permanent. Temporary alimony is awarded to support a spouse during the divorce proceedings, while rehabilitative alimony is awarded to help a spouse become self-supporting. Permanent alimony is awarded in cases where a spouse is not expected to become self-supporting due to illness or age.
Property Division in Delaware
Delaware is an equitable distribution state, which means that the court will divide marital property in a manner that it deems to be fair and just, but not necessarily equal. Marital property is defined as property that was acquired during the marriage, with the exception of gifts and inheritances.
When dividing marital property, the court will consider factors such as each spouse’s contribution to the acquisition of the property, the length of the marriage, and each spouse’s economic circumstances. It’s important to note that separate property, or property that was acquired before the marriage or by gift or inheritance, is not subject to division.
In Delaware, marital property is typically divided through a property settlement agreement negotiated by the spouses or a court order. If the spouses are unable to reach an agreement, the court will make the final decision.
Overall, spousal support and property division can be complex issues during a divorce in Delaware. It’s important to consult a licensed attorney to ensure that your rights and interests are protected during the process.
Child Custody and Support in Delaware
Child custody and support are often complex and emotionally charged topics in a divorce case. In Delaware, the court considers various factors before awarding custody or child support to a parent. As a divorcing parent, it’s important to understand how the system works and what your rights and obligations are.
Child Custody in Delaware
Like many other states, Delaware has two types of child custody: legal custody and physical custody. Legal custody refers to the right to make decisions regarding the child’s welfare, such as education, medical care, and religion. Physical custody, on the other hand, refers to where the child will live.
The court encourages parents to work together to create a parenting plan that works for both parties and the child’s best interests. However, if parents cannot agree, the court will make the decision for them. In making custody decisions, the court considers various factors, such as the child’s wishes (if they are old enough to express them), the parents’ ability to provide for the child, and any history of domestic violence or abuse.
Child Support in Delaware
In Delaware, both parents are responsible for financially supporting their child. The court calculates child support based on the Delaware Child Support Formula, which takes into account factors such as each parent’s income, childcare costs, healthcare costs, and the child’s needs.
The amount of child support may be adjusted based on various factors, such as the child’s age, special needs, and the parents’ ability to pay. If a parent fails to pay child support, they may face legal consequences such as wage garnishment, license suspension, or even imprisonment.
It’s important to note that child support is not optional, and both parents are legally obligated to provide financial support for their child. If you have questions or concerns about child custody or support in Delaware, it’s essential to seek advice from a knowledgeable family law attorney.
Child Custody Statistics in Delaware
Here are some statistics related to child custody in Delaware:
- Number of child custody cases filed in Delaware in 2020: 2,354
- Percentage of custody cases resolved through mediation: 53%
- Percentage of custody cases resolved through a court hearing: 37%
- Average child support payment in Delaware: $769 per month
- Percentage of custodial parents in Delaware who are mothers: 87%
Conclusion
Child custody and support are essential components of a divorce case in Delaware. Parents need to work together to create a parenting plan that serves their child’s best interests. If parents cannot agree, the court will make the decision for them based on various factors such as the child’s needs and the parents’ ability to provide for the child. Regardless of the outcome, both parents are legally obligated to financially support their child.
After going through the steps required to get a divorce in Delaware, it’s clear that the process can be overwhelming and emotional. However, by following the necessary steps and seeking professional assistance, it is possible to navigate the process successfully.
It’s important to note that every divorce is unique and the process may vary depending on the circumstances of each case. Therefore, it’s essential to seek legal advice from a qualified attorney to ensure that you are following the appropriate path for your situation.
In conclusion, obtaining a divorce in Delaware involves several steps, including residency requirements, filing for divorce and child custody arrangements. By keeping an open mind and seeking professional assistance, the process can be less stressful. Remember to take your time, stay organized, and prioritize your well-being throughout the proceedings.
