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Delaware Divorce Laws
Residency and Filing Requirements:In order to file for a divorce in Delaware, residency requirements must be met for the court to accept the case. If the court discovers it does not have jurisdictional rights to hear the case it will not be accepted or it will eventually be dismissed. The 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)
Grounds for Filing:The Petition for Divorce must declare the appropriate Delaware grounds upon which the divorce is being sought. The appropriate lawful ground will be that which the parties agree upon and can substantiate, or that which the filing spouse desires to prove to the court. The divorce grounds are as follows:
The Court shall enter a decree of 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: (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.
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. (Delaware Code - Title 13 - Chapters: 1505)
Filing Spouse Title:Petitioner. The Petitioner is the spouse who initiates the filing procedure with the family law or domestic relations court.
Non-Filing Spouse Title:Respondent. The Respondent is the spouse who does not file the initial divorce papers, but rather receives them by service.
Court Name:In the Family Court for the State of Delaware, in and for __________ County. This is the Delaware court where the divorce will be filed. The court will assign a case number and have jurisdictional rights to facilitate and grant the orders concerning, but not limited to: property and debt division, support, custody, and visitation. The name of the court is clearly represented at the top of all documents that are filed.
Primary Documents:Petition for Divorce and Decree of Divorce. These are the essential documents needed to start and finalize a divorce according to Delaware law. There are anywhere from ten to twenty other documents that may be required throughout the filing process. A few other documents that are typically filed during the process are: Family Court Information Sheet, Marital Settlement Agreement, Affidavit of Appearance and Waiver of Rights, Custody Separate Statement, Non-Military Affidavit (if appropriate), and Stipulation to Incorporate Settlement Agreement.
Court Clerk's Title:County Clerk's Office of the Family Court. The clerk or the clerk's assistants will be the people managing your paperwork with the court. The clerk's office will keep the parties and the lawyers informed throughout the process in regards to additional paperwork that is needed, further requirements, and hearing dates and times.
Property Distribution:Since Delaware is an "equitable distribution" state, the marital property shall be divided in an equitable fashion. Equitable does not mean equal, but rather what is fair. The court will encourage the parties to reach a settlement on property and debt issues otherwise the court will declare the property award.
In a proceeding for divorce or annulment, 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: (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; (10) The debts of the parties; and (11) Tax consequences.
"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. (Delaware Code - Title 13 - Chapters: 1504, 1513)
Restoration or Name Change:The Court, upon the request of a party by pleading or motion, may order that such party resume a maiden or former name. (Delaware Code - Title 13 - Chapters: 1514)
Spousal Support:Not all cases involve support from one spouse to the other. The obligation of one spouse to support the other financially for a temporary or permanent basis is decided on a case-by-case basis as agreed to by the parties or at the court's discretion.
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. (Delaware Code - Title 13 - Chapters: 1512)
Counseling or Mediation Requirements:In contested cases, after a hearing the Court shall: (1) Rule upon the petition; or (2) Continue the matter with the consent of both parties for further hearing not more than 60 days later so that 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. At the adjourned hearing the Court shall finally determine whether the marriage is irretrievably broken. (Delaware Code - Title 13 - Chapters: 1507, 1517)
Child Custody:When minor children are involved in a divorce, the Delaware courts will do everything possible to help lessen the emotional trauma the children may be experiencing. If the parents cannot come to an agreement regarding the issues involving the children, the court will establish the custody order at its discretion.
The Court shall determine the legal custody and residential arrangements 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 under 701 of this title; (7) Evidence of domestic violence as provided for in Chapter 7A of this title; and (8) 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.
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, nor shall it consider conduct of a proposed sole or joint custodian or primary residential parent that does not affect his or her relationship with the child.
In any case where there are living children of the marriage, the petitioner shall submit with the petition an affidavit signed by the petitioner showing that the petitioner has read or has been advised of the following children's rights, which shall be set forth in full in said affidavit: (1) The right to a continuing relationship with both parents. (2) The right to be treated as an important human being, with unique feelings, ideas and desires. (3) The right to continuing care and guidance from both parents. (4) The right to know and appreciate what is good in each parent without one parent degrading the other. (5) The right to express love, affection and respect for each parent without having to stifle that love because of fear of disapproval by the other parent. (6) The right to know that the parents' decision to divorce was not the responsibility of the child. (7) The right not to be a source of argument between the parents. (8) The right to honest answers to questions about the changing family relationships. (9) 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. (10) The right to have a relaxed, secure relationship with both parents without being placed in a position to manipulate one parent against the other. (Delaware Code - Title 13 - Chapters: 722)
Child Support:Delaware child support guidelines uses the Percentage of Income formula which calculates the support obligation as a percentage of the income of the non-custodial parent who is obligated to support the child. This method simply applies a percentage to the income of the parent according to the number of children requiring support.
The father and mother are the joint natural guardians of their minor child and are equally responsible with the child's support, care, nurture, welfare and education. Each has equal powers and duties with respect to such child, and neither has any right, or presumption of right or fitness, superior to the right of the other concerning such child's custody or any other matter affecting the child.
The court will examine the following factors when considering a child support award; the financial resource of the child; the standard of living prior to the divorce; the age and health condition of each parent; the earning capacity of the parents; the age and health of the child; and the needs of the child. (Delaware Code - Title 13 - Chapters: 501, 514, 701)
Copyright Notice: The above synopsis of Delaware divorce laws is original material which is owned and copyrighted by Divorce Source, Inc. This material has been adapted from applicable state laws and unauthorized reproduction is prohibited. Violation of this notice will result in immediate legal action.
Delaware is a no-fault divorce state, which means that the petitioner only needs to say the marriage is irretrievably broken without hope of reconciliation. Generally, the marriage is irretrievably broken because of a voluntary separation, a separation caused by a spouse's misconduct, a separation caused by a spouse's mental illness or separation caused by incompatibility.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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