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Delaware Divorce Process
Preparing the Divorce Papers
For a no-fault divorce in Delaware, the spouses must have been separated for at least six months before filing. In Delaware, the spouses can still be separated if they live in the same house, but don’t share the same bedroom or have sexual relations. For a fault-based divorce, such as one due to abuse or adultery, a party can file for divorce at any time.
The spouse who files the petition is the petitioner; the other is the respondent. The petitioner files a Petition for Divorce (Form 442), which include basic information about the parties, the date of separation, grounds for divorce, and expected relief, like division of property, alimony, attorney fees, or a name change.
If the couple has children together (under 18), both parents must attend a parent education class. They can file for divorce before taking the class, but the court won’t proceed until both submit certificates of completion. The Delaware Courts website provides a list of Approved Parent Education Classes.
In Delaware, child custody and support matters are not dealt with in the divorce petition and require a separate petition for child custody and support.
Along with the Petition for Divorce, the petitioner files an Information Sheet (Form 240), the Vital Statistics Sheet (Form 441), and the Request for Notice (Form 400). The request for notice tells the court how the petitioner wants the respondent spouse notified of the divorce petition.
Filing the Paperwork with the Court
The petitioner files the paperwork in the family court in the county where either spouse lives. The paperwork can be filed in person at the courthouse or by mail.
If the couple has children under the age of 18, the petitioner must also file the Affidavit of Children’s Rights (Form 279).
If the spouses have a separation agreement, the petitioner files it as well as the Stipulation to Incorporate the Separation Agreement Form (Form 443).
Serving the Documents
If the respondent lives in Delaware and the petitioner knows where, the court personally serves the spouse, which means that someone personally delivers the petition to his or her home or work. When the respondent’s address is unknown, the petitioner completes an Affidavit that the Party’s Address is Unknown and asks the court to publish a notice of the petition in the newspaper. The petitioner pays the publication costs. If respondent spouse doesn’t live in Delaware, the petitioner must ask the court to notify him or her by certified mail and publish notice of the petition in the newspaper, at the petitioner’s expense.
Disclosing Financial Information
If the petitioner requests that the court divide marital property or debt, or award alimony or attorney fees, then the spouses must jointly complete and file one Rule 16c Financial Report (Form 465), but only after they have received the divorce decree. The financial report requires the former spouses to produce financial information to the court and each other. Both must be completely honest about finances. If the parties try to hide property, the court can impose penalties.
Once the financial report is filed, the court schedules a hearing and notifies the parties of the date by mail. If the parties fail to file the financial report on time, the court dismisses the action.
Uncontested vs. Contested Divorce
Spouses in Delaware may seek either a contested or an uncontested divorce, and each moves through the system differently.
A contested divorce means that the respondent challenges the information claimed by the petitioner, such as the grounds for the divorce. Courts automatically schedule hearings in contested divorces. The petitioner should consult a lawyer in a contested divorce.
A divorce is uncontested if the respondent doesn't file an Answer to the petition within 20 days of receiving it, or if the respondent files an answer agreeing with the divorce. If the divorce is uncontested, the petitioner must choose between the following two proceedings: the court may decide the divorce based solely on the papers that are filed, without either spouse appearing in court for a hearing, or the court may decide the divorce after a hearing, which the petitioner must attend and the respondent may attend but isn't required to. If the divorce is uncontested, but both spouses ask the court to divide property or award alimony, the parties must appear for a hearing in front of a judge unless they settle the issues themselves beforehand.
Finalizing the Divorce
The court does not proceed with the divorce process until the spouses have been separated for at least 6 months, unless the petitioner files for divorce on the grounds of misconduct. Misconduct includes physical, mental or psychological abuse, adultery and desertion. If a party files on the grounds of misconduct, then he or she does not have to be separated for any specified period of time.
With a no-fault divorce, the case is trial-ready after the spouses have been separated for at least six months and the paperwork haws been served and the couple has completed the parent education class and filed a certificate of completion.
Trial-ready means that all of the preliminary requirements are finished and can proceed with the divorce. Once the case is trial ready, the parties receive a court notice. In an uncontested divorce, if the petitioner asked to proceed without a hearing, solely on the papers submitted, he or she receives a notice giving him or her 20 days to file the following forms: Request to Proceed Without a Hearing (Form 446), and Affidavit in Support of the Request to Proceed Without a Hearing (Form 447).
The court forwards the papers to a commissioner who decides whether to grant the petition for divorce. If the commissioner grants the divorce, the spouses receive a divorce decree (order) in the mail. If not, the commissioner denies the petition for failure to meet legal requirements, or schedules a hearing to take testimony and other evidence. If the court schedules a hearing, the spouses receive notice of the time and date.
If the parties seek an uncontested divorce but request a hearing, the spouses receive notice of the hearing date and time. The spouses must appear in court on the hearing date, otherwise the court dismisses the petition and the petitioner must start the process and pay the filing fee again. At the hearing, the judge takes testimony and other evidence to determine whether to grant the divorce. If the judge grants the petition, the parties receive an Order and Decree of Divorce.
Delaware divorce law requires a pure "equitable distribution" of the property. Marital conduct is not a factor. Equitable does not mean equal, but rather what is fair for both parties. In dividing property, the court considers the length of the marriage, the needs of each of the parties, the age, health, occupation, and employability of each party, whether the property was acquired by gift, the debts of the parties and the value of allowing the children to remain in the family home.
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