Delaware Divorce Laws: Child Custody & Support, Alimony, Property Division

The following is a summary of Delaware divorce laws, and is by no means intended to be an all-inclusive description of what to expect in your particular case. In some cases, the exact text of the statute may have been simplified and/or modified to provide for easier understanding. For a more specific understanding of the laws, you should consult the full Delaware Code and/or consult with an attorney about how the law might apply to your particular situation.

Delaware Divorce Laws

Delaware Divorce Grounds

A divorce can be granted in Delaware whenever the court finds that the marriage is irretrievably broken and that reconciliation is improbable. A marriage is irretrievably broken where it is characterized by:

  1. Voluntary separation; or
  2. Separation caused by respondent’s misconduct; or
  3. Separation caused by respondent’s mental illness; or
  4. Separation caused by incompatibility.

(e) 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. A petition for divorce may be filed at any time following the separation of the parties if the residency requirements have been satisfied, although the divorce can’t be finalized until after the parties have been separated for at least 6 months. (1507)

-From § 1505 of the Delaware Code.

Delaware Residency Laws

A divorce can be granted when either party, at the time the divorce papers are filed, actually resided in Delaware, or was stationed in Delaware as a member of the armed services of the United States, continuously for at least 6 months immediately preceding the filing of the divorce papers.

-From § 1504 of the Delaware Code.

How to File Divorce in Delaware

The divorce papers can be filed in the county where either spouse resides.

Final Hearing

If the divorce is uncontested, the respondent doesn’t usually need to attend the final hearing. The petitioner will be the only one required to testify at the final hearing. However, if the petitioner’s testimony fails to support the petition in any essential respect, the Court may deny the petition or require corroborating testimony or other evidence.

–From § 1517 of the Delaware Code.

Additional Information

In any divorce case where the parties have children under 18, they must attend a “Parenting Education Course.” If the parties file a motion and the Court determines that the parties’ motion is sufficient, the court can waive attendance in the course. The “Parenting Education Course” will be 4 hours long, and will consist of at least the following topics:

  1. Information on the developmental stages of children;
  2. Adjustment of children to parental separation;
  3. Dispute resolution and conflict management;
  4. Guidelines for visitation;
  5. Stress reduction in children; and
  6. Cooperative parenting.

A party with a history of domestic violence will be ordered to participate in a separate and more intensive course which will include education regarding domestic violence, its prevention and its effect upon children, in addition to the topics listed above. Parties don’t have to attend the same course.

-From § 1507 of the Delaware Code.

Learn more about the divorce procedure.

Alimony Laws in Delaware

The following is a summary of Delaware alimony laws, and is by no means intended to be an all-inclusive description of what to expect in your particular case. In some cases, the exact text of the statute may have been simplified and/or modified to provide for easier understanding. For a more specific understanding of the laws, you should consult the full Delaware Code and/or consult with an attorney about how the law might apply to your particular situation.

Whether to Award Alimony

A party in Delaware can be awarded alimony only if he or she:

  1. Is dependent upon the other party for support and the other party is not contractually or otherwise obligated to provide that support after the entry of a divorce decree;
  2. Lacks sufficient property, including any award of marital property made by the Court, to provide for his or her reasonable needs; and
  3. 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.

Alimony Guidelines

The alimony order shall be in such amount and for such time as the Court deems just, without regard to marital misconduct, after consideration of all relevant factors, including, but not limited to:

(1) 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;
(2) The time necessary and expense required to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment;
(3) The standard of living established during the marriage;
(4) The duration of the marriage;
(5) The age, physical and emotional condition of both parties;
(6) Any financial or other contribution made by either party to the education, training, vocational skills, career or earning capacity of the other party;
(7) The ability of the other party to meet his or her needs while paying alimony;
(8) Tax consequences;
(9) Whether either party has foregone or postponed economic, education or other employment opportunities during the course of the marriage; and
(10) Any other factor which the Court expressly finds is just and appropriate to consider.

Additional Information

A person shall be eligible for alimony for a period not to exceed 50% of the term of the marriage, with the exception that if a party is married for 20 years or longer, there shall be no time limit as to his or her eligibility.

Date of Termination

Unless otherwise agreed in writing, the obligation to pay future alimony is terminated upon the death of either party, or the remarriage or cohabitation of the party receiving alimony. “Cohabitation” means regularly residing with an adult of the same or opposite sex, if the parties hold themselves out as a couple, and regardless of whether the relationship confers a financial benefit on the party receiving alimony. Proof of sexual relations is admissible but not required to prove cohabitation. A party receiving alimony shall promptly notify the other party of his or her remarriage or cohabitation.

-From § 1512 of the Delaware Code.

Learn more about general alimony laws.

Delaware Child Custody Laws

The following is a summary of Delaware child custody laws, and is by no means intended to be an all-inclusive description of what to expect in your particular case. In some cases, the exact text of the statute may have been simplified and/or modified to provide for easier understanding. For a more specific understanding of the laws, you should consult the full Delaware Code and/or consult with an attorney about how the law might apply to your particular situation.

Delaware Child Custody Guidelines

The Court will determine legal and physical 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(s) 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; and
  7. Evidence of domestic violence.

Access to Records

Each parent has the right to receive, on request, from the other parent, all material information concerning the child’s progress in school, medical treatment, significant developments in the child’s life, school activities and conferences, special religious events, and other activities in which parents may wish to participate. Each parent and child also has a right to reasonable access to the other by telephone or mail. However, the Court can restrict the rights of a child or a parent if it finds, after a hearing, that the exercise of such rights would endanger a child’s physical health or significantly impair his or her emotional development.

-From § 727 of the Delaware Code.

Additional Information

The Court won’t presume that a parent, because of his or her sex, is better qualified than the other parent to have legal or physical custody of the child. It also won’t consider conduct of a proposed custodian that doesn’t affect his or her relationship with the child.

-From § 722 of the Delaware Code.

Learn more about general child custody laws.

Delaware Child Support Guidelines

There are specific child support guidelines that will determine how much child support should be paid. Child support typically can’t be waived by the parents, although a judge might decide this on a case-by-case basis, looking at all factors. If you and your spouse agree to an amount of child support that’s different than the guidelines would order, the judge will decide if that amount is in the child’s best interests.

Child support terminates in Delaware when the minor child reaches 18 years of age; provided, however, that if a child over 18 is still enrolled in high school, then child support terminates when the child receives a high school diploma or attains the age of 19, whichever event first occurs. Arrears or past due child support doesn’t terminate until it has been fully paid.

-From Section § 517 of the Delaware Code.

Delaware Divorce Law on Property Division

The following is a summary of Delaware property division laws, and is by no means intended to be an all-inclusive description of what to expect in your particular case. In some cases, the exact text of the statute may have been simplified and/or modified to provide for easier understanding. For a more specific understanding of the laws, you should consult the full Delaware Code and/or consult with an attorney about how the law might apply to your particular situation.

Definition of Marital Property

“Marital property” means all property acquired by either party subsequent to the marriage except:

  1. 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.
  2. Property acquired in exchange for property acquired prior to the marriage;
  3. Property excluded by valid agreement of the parties; and
  4. 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 how the title is held. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in paragraphs (1) through (4) above.

Property Division Guidelines

Delaware laws allow the court to 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:

  1. The length of the marriage;
  2. Any prior marriage of the party;
  3. The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties;
  4. Whether the property award is in lieu of or in addition to alimony;
  5. The opportunity of each for future acquisitions of capital assets and income;
  6. 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;
  7. The value of the property set apart to each party;
  8. 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;
  9. Whether the property was acquired by gift, except those gifts excluded by subsection (b)(1) of this section;
  10. The debts of the parties; and
  11. Tax consequences.

-From § 1513 of the Delaware Code.

Learn more about general property division in divorce or common ways to divide your property.

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